Ask Our Lawyer March 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

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

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

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

       WAIVER OVERSEERS ARE A MUST FOR RUNS

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

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

TRESPASSERS ON RIDES AND WHAT TO DO

Q.   Hi Rod, a question came up regarding liability waiver forms for our runs and activities. Question is this: What if a person jumps in on the run (seeing a buddy having fun), crashes the gate or just refuses to sign in? How does the law look at this if the person (God forbid) is harmed in some way during our activity? Is this person “Not trespassing?” Who’s got our back on this one? Or , how do we cover our backside? James Blevins, ABATE OF OHIO MEMBER.

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

JULIE BACON TREASURER OF A.B.A.T.E. OF ILLINOIS – BOSSY PANTS?

I don’t think so. As a matter of fact she is right on and doing her job, and no one has ever done it better.

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

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

JULIE’S SIMILAR QUESTIONS FROM YEARS AGO

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

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

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

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

BIKER CHICK

Once upon a time, there was a bantam rooster. Since it looked different than the regal all white Leghorns, about a third of their size and brownish, it pretty much lived a life outside the chicken world being that he was the only one of his tribe in that flock. I think he decided that since he was not one of them he would hang with us – the need to belong somewhere must be universal. And he even had a name – Chicken George. An amazing thing was that he had learned to ride on a platform in front of the handlebars of a bicycle. So it didn’t take much for it/him to transfer the bicycle perching skills to motorcycle perching skills. Here is how that happened. One summer, a neighbor had some friends visit from the Chicago area. They brought with them motorcycles that needed stored “for a while”. I didn’t know then, what I probably do know now, about those motorcycles. Just guessing but I am reasonably sure, now, that then, there was some confusion as to ownership. So for one good part of a summer we had to make sure that these motorcycles were properly exercised – for the rightful owners of course. And so did the biker chick. Nothing more amusing than watching this biker chick perched at the top of a buddy seat on an old knuckle going down the road at about 50 mph. Something about the wind I guess, especially when you have small or no wings.

Ride Safe and Free,

Rod Taylor
ABATE Legal Services

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. © 2013.

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Ask Our Lawyer February 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

DOGGONE DOG LAWS OR PINK PANTHER’S “IT IS NOT MY DOG” DOESN’T WORK IN MANY STATES

Q.   Rod, while riding in Kentucky, out of nowhere a stray dog jumped in front of my bike. I went down hard, was injured and my bike sustained considerable damage. While waiting for medical attention, I learned that the local preacher was feeding and caring for the stray, but was not otherwise securing the dog. He made a big point of saying that he did not own the dog and denied legal responsibility ( just like Peter Sellers did), but he did admit to feeding and caring for it. What is the law in this situation?

A.   In my experience, injuries caused by loose dogs are some of the more devastating – hence the reason that many states and counties have enacted laws/ordinances that protect the public. Many riders do not appreciate the dangers of loose dogs running into the path of a motorcycle. I didn’t until I got into the lawyering business. My technique of dog avoidance was to speed around them or nudge them away with my boot – both are bad ideas. Isaac Newton is right, “whatever you hit” hit it as slow as possible.   Here is what you can expect when you hit a dog, even at low speeds of 30 or 40 mph and god forbid you hit one at 50 or 60 mph. Your front tire instantly turns sideways even though you are traveling at lower speeds, and it does this – without a hint of warning, unless you are so good that you hit the dog – dead center. And that almost never happens with the usual collision causing your bike to go head over heals, with you somewhere in the mix. Not good. Most bikers that have not hit a dog assume that you just run over the top of the dog and go on. Not so, unless you’re that one in a thousand and happen to hit the dog with equal pressures on the front tire.

Laws have been enacted in many jurisdictions to protect the public from the dangers of stray dogs on roadways which include responsibility for feeding, caring for and otherwise harboring a stray dog. Even though the intentions are pure, once you undertake the care of a stray, there is a duty in many jurisdictions to make sure the dog does not run loose. In other words, if you start caring for a stray dog, you have to do it right and make sure that the stray you feed does not cause harm to others. Legally it becomes your dog to keep out of the public’s way. Interestingly, cats are off the hook in Illinois – must have had a good lobbyist.

Regulation 90.02 in Kentucky, 510 ILCS 5/2.16 in Illinois, Sec. 955.28 in Ohio and other similar laws around the country, defines the owner of an animal as one “who keeps or harbors an animal or dog, has it in his care, or permits it to remain on or about the premises owned or occupied by him ….” as such “is liable for all damages caused by such animal….” This is so even if a person just cared for the stray dog. No ownership is required. Common sense and lawmakers do not want folks harboring a dog without the legal responsibilities. Accordingly, most communities disallow the Pink Panther, “it’s not my dog defense.”

In searching for the law on responsibilities of “dog harborers” don’t stop with state laws (statutes). Counties in some states have enacted ordinances that provide legal responsibilities to the owner of the property, even where the dog is owned by the tenant. For example, an Ordinance in Howard County, Indiana provides for liability of the owner of business property, when that owner permits a dog to roam free on the property even when that dog is owned by another.   It is sufficient that the property owner knows that a dog is running loose and could be a problem. The idea is that the land owner has control of his property and can make sure the renter’s dog is secured.

In most cases, home/business insurance policies, provide coverage for your personal injury and property damage to your bike. So if you get hurt by a dog when it runs out in front of you, and the person standing over you seems to know all about the dog but does not want to own up to the responsibility for your injuries, I know a lawyer that knows all about your rights.

MOTORCYCLE POSTTRAUMATIC STRESS DISORDER – ANOTHER STORY

A while back, I wrote a story about a good friend of mine who had a traumatic experience while riding and gave it up. While on his weekly ride, his good friend was killed by a couple of racing drivers. My friend is a guy that had more miles on a bike than just about anyone I know – including me. Doctor Taylor here, concluded that surely more is going on with him than meets the eye. Motorcycling was his life. How could he quit? And what would cause such a drastic decision in his life. Using the experiences of clients I have had over the years, I suspected the root of the evil was posttraumatic stress disorder. My experience is that many of these riders return to riding at some point in their lives, but not until, they, on their own or with the help of others, work out the “stress issues”. And “we” have to realize that the meteorite can get us – unlikely, but it still can happen.

Interestingly, I have observed others who seem impervious to the “stress disorder” and go about putting their life back together even better than it was before. “Ron” is the poster biker for a fellow that gets hit on his motorcycle, and honestly believes that his life has become better for it. He was run over by a person who was not paying attention. Many surgeries and infections later, his right leg was removed below the knee. Now he is living life with the gusto of a man many years younger having become heavily involved in his church and the needs of his family. He has been an empty nester for many years now, and has replaced the requirements of his graduate engineer daughter with seven dogs. I think it is fair to say they are having a hoot. And did I mention that he continues to ride? Why is he and those like him different than the others? I wish I knew so that I could bottle his attitude and pass it on to those of us that need it desperately.

MISSOURI SENATE BILL 897 – NO MORE MOTORCYCLE ONLY CHECKPOINTS

Since ABATE, MRF, AMA and other motorcycle rights organizations have gotten involved, 5 states have outlawed the practice of federally funded motorcycle only checkpoints. I have written about this practice in the past when it first started showing up in New York, Illinois and other states. What better way to ruin your day of riding than a federally funded police officer getting federal funds for his overtime gig to cause you delay or deter you from attending your favorite motorcycle event? Now Missouri has introduced legislation to join the other “outlaw” well thinking states. Looks like we have only 44 more to go if Missouri does as the other five. If you need help in your state getting legislation introduced to eliminate this unwarranted practice let us know.

ROADHAZARD REPORTS

With the freeze and thaw, there will be numerous potholes and dangerous riding conditions. Take a moment out of your day to report these adverse conditions to RoadHazard.org. Looking out for others on the open road might just come back and look out for you!

From time to time we will commend people and companies that are proactive in helping to keep our roadways safe. This month we thank BNSF Railway for its quick action in repairing a very dangerous railroad crossing. The crossing, located on Somonauk Road/DeKalb County had a huge pothole 18 inches wide by 3-4 inches deep. Rebar was visible in the bottom of this small canyon – waiting on you to show up! After notifying BNSF Regional Director of Public Affairs, Amy McBeth, we were kept up to speed as to the improvement of this crossing which was completed in less than two weeks. Impressive! Thanks again to BNSF and Amy for their very timely and responsible actions!

ON THE LIGHTER SIDE

In a trial, a small-town prosecuting attorney called his first witness, a grandmotherly, elderly woman to the stand. He approached her and asked, ‘Mrs. Jones, do you know me?’ She responded, ‘Why, yes, I do know you, Mr. Williams. I’ve known you since you were a boy, and frankly, you’ve been a big disappointment to me. You lie, you cheat on your wife, and you manipulate people and talk about them behind their backs. You think you’re a big shot when you haven’t the brains to realize you’ll never amount to anything more than a two-bit paper pusher. Yes, I know you.’

The lawyer was stunned. Not knowing what else to do, he pointed across the room and asked, ‘Mrs. Jones, do you know the defense attorney?’

She again replied, ‘Why yes, I do. I’ve known Mr. Bradley since he was a

youngster, too. He’s lazy, bigoted, and he has a drinking problem. He can’t build a normal relationship with anyone, and his law practice is one of the worst in the entire state. Not to mention he cheated on his wife with three different women. One of them was your wife. Yes, I know him.’

The defense attorney nearly died.

The judge asked both counselors to approach the bench and, in a very quiet voice, said, ‘If either of you idiots asks her if she knows me, I’ll send you both to the electric chair.’

Ride Safe and Free,

Rod Taylor
ABATE Legal Services

ABATE, though many know it not, is one of the greatest rights organizations ever; but what it reaches for, by far exceeds what it has achieved,

and what it has achieved is magnificent.

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. © 2013.

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Ask Our Lawyer January 2013

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

ALL BIKERS SHOULD BE “ROADS” SCHOLARS

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

ROADS SCHOLAR LESSON N0. 2 –   The outcry of cyclists (without motors) in 1891 gave rise to better roads. Cycling clubs sprang up all over the U.S. resulting in the creation of state highway departments in the 1890’s.

ROADS SCHOLAR LESSON N0. 3 – Roads started simply – with ditches on the side and with varying sizes of gravel laid down with a “high” portion in the middle. The new style road was called a “high-way”. When concrete and asphalt came along, there also came a new road name, “the hard road”.

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

SO YOU GOT A JUDGMENT IN SMALL CLAIMS COURT AGAINST THE BIKE SHOP THAT RIPPED YOU OFF – NOW WHAT?

Q.   Rod, I took your advice and filed suit on my case where the bike shop failed to fix my bike properly, leaving me with a big repair bill at another shop. I got a judgment, but have been getting the runaround on collecting the amount I am owed. What do I do now? ABATE OF INDIANA member.

A.   As lawyers are known to say, “ A judgment is only a piece of paper”. And they are right. So you now have a judgment, but that is only half the battle. Now you need to collect it. Generally, you can seize money from bank accounts, but in order to do that you need the court to order the debtor to answer questions about his assets including his bank accounts. By far the easiest way to collect your judgment is a wage garnishment – if the debtor has a job. Typically you can collect 25% of his wages until your judgment is paid. There are limitations on garnishments especially if another garnishment has been ordered. Remember to be nice to the court’s clerk. That person can make your collection life so much easier, and they usually know more than the lawyers.

Another way to collect your money is to talk with the debtor and try to work out a payment schedule. You might even consider compromising your judgment to save time and expense. And it may be that the debtor has some stuff you could trade for satisfaction in whole or part for your judgment. Let us know how this turns out for you and the lessons that you can share with us. If you take all or part of your judgment in trade, get the debtor to sign off on the deal or at least have him send you a confirming email/text and save it.

U.S. 66 – THE MOTHER ROAD FOR BIKERS AND PROBABLY FOR THE OTHERS TOO

After the advent of cycles in the 1890’s and the “motorized” Harleys in 1904, we had to get out and ride (after all the Model T’s did not come around until 1908). Where better than to follow the Old Santa Fe Trail, Jedediah Smith’s footsteps across California, and Beale’s wagon road across the South West? Later we poured concrete on it and called it Route 66, and now some of us call it the “Mother Road”. You can hear me say that no one should be allowed to die until they have ridden this road from Chicago to California – every mile of it. Nothing gives you motorcycle road fever more than being at the corner of Jackson Blvd. and Michigan Ave. in Chicago (the beginning of Route 66) for your start to California. And nothing feels better than to arrive at the Santa Monica Pier (the end of Route 66) after a whole bunch of wonderful riding miles. A celebratory option is to take a leak off the Santa Monica Pier in celebration of the best road trip ever. That celebration should be a defense to any charges under California law, especially if you are discrete. Tell them I said so. In future articles, I will write about portions of the road and why that road is so important to us bikers.

ROADHAZARD.ORG GOES MOBILE

ABATE Legal is developing a mobile app for reporting road hazards.

This app will allow you to take pictures, use your GPS location, and report needed information. With the availability of reporting dangerous roads at your fingertips, we hope to make our roadways smoother, safer, and hazard-free.

FROM BRIAN SHADIOW – ABATE LEGAL.

COMING SUMMER of 2013!

EXPUNGING UNCLE FRED’S CRIMINAL RECORD IN OH., IN. AND IL. – CAN YOU?

Q.   My uncle had a criminal conviction prior to being drafted into the U.S. Army back in the late 60’s. He was only 18 at the time of conviction. Since returning from the service, he has raised a wonderful family and led a good life and wants to get rid of this stain on his record. What can we help him do to get this straightened out? ABATE OF OHIO member.

A.   Most criminal records of arrest will never be expunged. However there are some instances where the law allows a unique and harmless criminal arrest experience to be silenced – forever. That process is called sealing of records. In other words, sealing is hiding the records from the public and expungement is permanent destruction of arrest records. That is the general difference between expungement and sealing. Why is this allowed, you ask? Because the stain of the alleged offense is often more painful than punishment for the offense and that is thought to be unfair to a good citizen that had a youthful moment. Adding to the confusion, it seems that each state has a unique rule regarding this process.

Let’s start with Illinois.   Here the legislature allows a process for erasure of some arrests so the accused can go about life as if the arrest never occurred. But no convictions in Illinois can be expunged – only non-conviction records like arrests. Even then any prior convictions for just about anything other than traffic offenses are show stoppers. So what can be erased in Illinois?

1. Arrests with no formal charges; 2. Cases that were dismissed or for which you were acquitted; 3. Cases in which you were convicted, but the conviction was later reversed; 3. Cases of successful court supervision and first offender programs and the like. With expungement, the records are destroyed or returned to the arrested person. In Illinois sealing is a different deal. In that case the records are not destroyed but merely hidden from the public, the cops can still see those records and use them against you in later sentencing hearings. The differences in sealing are that records of convictions can be sealed so long as those crimes were non-violent. As in most states, the last hope for serious convictions ia a pardon from the governor, who can order expungement of the records (destruction). The expungement process usually involves filing a petition in the circuit court where the case started.

In Ohio there is no such thing as expungement. The best you can do is to get your records “sealed”, and that will occur if you did not have any prior convictions. This means that most employers, landlords, and the general public will usually not be able to see your arrest and conviction records. The exceptions are law enforcement personnel and professional licensing boards. Usually no records of first or second degree felonies, offenses with a prison sentence or any violent offense can be sealed. Interestingly, no traffic offense can be sealed – thanks to the insurance industry.

In Indiana, there are only two ways (short of the governor’s help) to get an expungement of an arrest record. 1. You were busted but no charges were ever filed against you (this protects you from the cop whose ex-wife your were dating and who took exception). 2. You were busted and charges were filed, but all charges were dropped because; you were the wrong guy; no offense was committed; or there was no probable cause. This means that even if you were found not guilty, you are not eligible for expungement of your arrest/trial record because you do not fit into 1. or 2. above. Then what can you do? After 15 years, you can petition for limitation of access of your records to criminal justice agencies. For more, you are going to need a pardon from the governor, and for that, you better have done some very good things for your state, and have been a model citizen before and after your conviction. Indiana also allows restricted disclosure of arrest records usually where no prosecution occurs or a conviction is vacated/found innocent. The restricted disclosure rules are more lax than the harsh rules of expungement (destruction) of arrest records.

In most states there are specific rules for juveniles that have had a delinquent/criminal history. I will address this complicated area of the law in a later article.

THE END OF THE RIDE – WILL IT HAPPEN TO US?

This is about Dave Pedersen, a riding budding of mine for over a quarter of a century and a retired bank tycoon. He has given new joy to the concept of motorcycling . I wanted to write this piece for a while now, but I didn’t; read on and you will understand why. Dave has owned and ridden Harley Davidson motorcycles most of his life, and now he doesn’t. I will get into that later. He is/was not just a rider; he is/was hard core. With over 400,000 miles on a series of cycles, few people can best him in the iron butte category, and he has never had so much as a scratch. In his words, nothing but heavenly pleasure. His riding marked him. It was nothing for him to ride out to a HOG event in Washington state and then ride across the county to New Hampshire, within two weeks. In essence, his life was motorcycling and how. We have ridden lots of miles together and through everything. Rain, sun, more rain, lightning, lots of lightning, more sun – and in the middle of nowhere. Not even a tree to get electrocuted under. His son is still hard core into the passion of his father. So what is with the quitting thing? David is 68 years old and has decided that all good/wonderful things come to an end. He has concerns about his age and ability to keep it perpendicular. Maybe it doesn’t help that last spring he and his buddy were riding the mountains near Flagstaff when an errant individual decided to race down the mountain, lost control and hit/crashed with Dave and his buddy. The buddy died at the scene and Dave was lifelined to a hospital in Flagstaff. When Dave called to tell me of his bad luck, I was stunned to learn that he had sold everyone of his motorcycles and had retired from riding. I did not know what to say then and do not understand now. I know that posttraumatic stress disorder gets a lot of us, but not Dave, so I wonder if that is causing his exit from one of life’s pure joys. He is a rub dirt on it – norwegian type of guy. Stuff like that does not get in his way. As long as I can hold one leg up, I cannot ever see me doing what Dave has done – ever. But Dave did say in our closing conversation, “your time will come”. I didn’t respond as I am saving that for another time and my thoughts as to posttraumatic stress. If anybody has it, Dave does, but that outwardly tough guy is not buying it; and enough of that from me – Dr. Taylor.   But I wonder how many of us have experienced this problem? I will write about that another time.

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. © 2013.

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Ask Our Lawyer July 2015

Ask Our Lawyer

by Rod Taylor – ABATE Legal Services

MOTORCYCLE NATION

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

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

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

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

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

MIRACLE RIDE 2015 IN THE RAIN  – AND WOW THEY CAME ANYWAY

On ride day, we were anxiety ridden when the clouds and rain were predicted.  That is an almost new experience because for the last 20 plus years the no-rain gods have smiled upon the Miracle Ride.   This time, for the Sunday ride to Riley Hospital for Children and around the famous Indy 500, we were expecting the worst.  Not many my age, venture out into rain storms on purpose. We only do it when we are caught in it, or it is for a wonderful cause – like the kids at Riley.  Coincidently, my wife, Ann, has stopped calling me Weatherman Rod based on my lack of reliable weather predictions recently.  I had predicted clear skies.

Coming in to the back lot of Allison Transmission for the start of the Ride, only a couple hundred bikes were spotted – not a good sign.  Usually by that time, thousands would be present.  Celebration was the mood, and ABATE LEGAL would once again be serving  “Long’s”  famous donuts – free.  Life would be good and usually the kids at Riley Hospital would pack them in.  Not today, or so it seemed.  I started practicing the consolation speech that you give when things go badly.

Then, when barely enough time to  get lined up for the start remained, they started coming.  A few at first, then scores, then hundreds.  Before long, Tom of the Bob & Tom Show fame was entertaining his usual thousands.  They had come to help the kids at Riley – even in the rain.  I believe that is all you need to know about bikers and where their hearts rest.  We may not have set a Miracle Ride record this year, but we did for the Miracle Ride in the rain.

STATE REQUIREMENT OF MINIMUM INSURANCE –  IS NOT INSURANCE!

Roulette is what you should call the next time you ride to Mardi Gras or Bike week and  travel through Mississippi, where it is estimated almost a third of the vehicles in that state are uninsured.  Meaning that you are on your own if you get hit by one of those.  It boils down to –  how lucky do you feel?  And we have discovered that of those who are insured in Mississippi, almost 50% of those have the state minimum of 25k.  Some states have the nerve to call 25k insurance.  By any definition that is not insurance.  With a left turn in front of you,  a helicopter ride to the hospital, surgery for injury repair, lost wages, pain – suffering, and temporary impairment, 25k from the adverse driver is just enough to piss you off.  And to make matters worse, all of health insurers will have a priority lien on those proceeds.  So if your hospital bills exceed 25k guess who doesn’t get the money – you.

For any state to claim that 25k  (some states have even less) meets a minimum liability requirement based on potential damage caused is terribly misleading.  That state minimum goes back decades.  Shouldn’t it be updated to at least keep up with increasing medical costs, wages etc.?  An air-vac ride to the hospital can cost over 25k.  Since the state and insurance companies are not looking out for you, you have to look out for you by buying adequate uninsured/underinsured motorist coverage.  What is adequate?  As much as you can buy is my answer.  The costs to upgrade is cheap, cheap and wonderfully cheap.  I maintain that you should not ride in Mississippi, Florida and many other states where the numbers of uninsured/underinsured are breathtaking, unless you have adequate uninsured/ underinsured coverage.

There should be a law that disallows anyone to call insurance “insurance” unless the insurance amount is sufficient to pay for the harm caused.  After all, in most civilized countries, the rule is “if you break it – you should pay for it.”  And if you can not pay for the harm to the biker/motorist that you just ran over – you should not be allowed to drive.

Lets take a typical state insurance requirement where the state minimum is $25k per individual, $50k for all claimants, and $10k for property damage.  The average premium for this policy is

$48.20 per month, but without uninsured/underinsured coverage.  If you add that coverage, it costs only a little less than 4 bucks more or $51.93  per month.  On average it costs only about 10% more of your monthly payment to carry uninsured/underinsured coverage for the lower limits.

Significantly, the  cost to go from state minimum insurance to upgrade to the most popular coverage of $100K- $300K,  is less than $5.00 more per month.  And the cost to go from state minimum insurance to upgrade to the usual highest coverage of $500k was less than $12.00 more per month than the basic liability policy –  which is roughly 25% of your monthly payment.  And that is with uninsured/underinsured coverage.  By any definition – a good deal, especially when the little old lady (or man) that can’t see or hear – gets you.

MEDICAL BILL HELL

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

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

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

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

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

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

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

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

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 June 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 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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