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Ask Our Lawyer - August 2011


Q. I am President of Crawford County Illinois ABATE and have a question about ATV & UTV riding on public roads. We are trying to get our county board to start issuing permits so we can ride certain ATV & UTV's on county roads. We realize there would be certain requirements we would have to follow. Can you give me your opinion on how we can get this done? Thanks.
- Warren Salesman, President, Crawford County ABATE of Illinois

A. While this question comes from Crawford County Illinois, I will answer this so as to apply to Ohio and Indiana as well. A few years back many states ceded the right of the state to regulate ATVs and UTVs to the counties. The counties that allow ATV travel on county roads have some restrictions, e.g. authorizing stickers, insurance requirements and age restrictions. In most instances there are negotiations with the state concerning crossing rights over state highways. Here is a typical statue in summary. This one regulates ATVs in Ohio. Illinois and Indiana laws are similar.

§ 4519.41.

Snowmobiles, off-highway motorcycles, and all-purpose vehicles may be operated as follows:

(A) To make a crossing of a highway, other than a highway as designated in division

(A)(1) of section 4519.40 of the Revised Code, whenever the crossing can be made in safety and will not interfere with the movement of vehicular traffic approaching from any direction on the highway, and provided that the operator yields the right-of-way to any approaching traffic that presents an immediate hazard;

(B) On highways in the county or township road systems whenever the local authority having jurisdiction over such highways so permits;

(C) Off and alongside a street or highway for limited distances from the point of unloading from a conveyance to the point at which the snowmobile, off-highway motorcycle, or all-purpose vehicle is intended and authorized to be operated;

(D) On the berm or shoulder of a highway, other than a highway as designated in division (A)(1) of section 4519.40 of the Revised Code, when the terrain permits such operation to be undertaken safely and without the necessity of entering any traffic lane;

(E) On the berm or shoulder of a county or township road, while traveling from one area of operation of the snowmobile, off- highway motorcycle, or all-purpose vehicle to another such area.

Now, let’s talk about how to get your county to go along with legalizing ATVs on county roads. These five rules should be the basis for your strategy:

1. Form a committee of interested movers and shakers in the county. Pack the committee with as many as you can, so that when you meet with the county authorities they can start counting votes in your crowd. Select a well-respected member to be your mouth piece. Make sure all are represented: farmers, recreational land owners, ATV enthusiasts, police officers and the like should be on the committee. Educate your committee on issues and experiences of other areas that have successfully passed laws allowing ATV use. Get testimonials from counties that have passed ATV use on county roads - especially elected officials and police officers to show that there are no unusual problems and that the ATV use on county roads is a good thing for the citizens.

2. Most rural counties have excellent safety records regarding ATVs and UTVs, golf carts are not far behind. Several Indiana and Illinois towns are now “golf cart” communities, and they love it. Use that record to convince the county authorities that the proposal in your county will not increase accidents, but will actually decrease them if well regulated.

3. In days of $4 dollar a gallon gasoline, economics should drive home the argument. It is cheaper to fire up the ATV than the F350 Ford to check the south 40, or go over to the corner grocery (on county roads of course). Preach the environmental benefits.

4. Since most ATV owners run the county roads at some point, legal or not, argue that regulations requiring insurance and drivers licence creates a responsible environment. Without this regulation, it is the wild west.

5. Let the county know that fees for registration can be charged by the county. Pointing out mutual advantages always helps.

With these five simple rules, you should be on the way to victory. Let me know how you come out.


Q. I was riding and had to travel a road that had recently been resurfaced using chip and seal. It made a mess of my bike and was dangerous to ride on. What can I do?

- Steven

A. Steven: encourage all to send a notice to ROADHAZARD.ORG like you have in your case. Our office has been in contact with the officials having jurisdiction over this state road. Chip and seal is not a friend of any vehicle much less a two wheeler. If chip and seal is used, warning signs are a must for the traveling public, especially motorcyclists. It is not a fair fight traveling 60 mph only to run onto fresh chip and seal without notice or warning. Our members have had some bad mishaps with chip and seal in both Ohio and Illinois. We have requested a formal response from Indiana, Illinois and Ohio regarding the procedures to be used by highway contractors when chip and seal is applied, especially as to proper warnings and detours. And it seems they always chip and seal at the worst times. The coefficients of friction and motorcycle tires simply do not work well with temperatures that we are having this summer. I have requested ABATE lawyer George Tinkham, a former lawyer for the Illinois State Highway Department, to weigh in on this one as well. We’ll keep you posted on this issue.


Q. I have been stopped by the police for the modulating headlamp on my motorcycle claiming the mod headlamp was illegal according to state law. Will you set the record straight on this issue and give us something we can show the cops?

- Eddie Bell, Eleven year ABATE member.

A. A number of local law enforcement officers seem confused by the law on modulating headlights, and object to them on the basis of various state statutes dealing with use of flashers or lights which simulate emergency vehicle lights. There are specific requirements as to the frequency of the modulation and minimum power present on each cycle. The idea is to prohibit flashing lights. However, modulating headlights are legal and in some states modulating tail lights are allowed. Even where mod taillights are not I have not received objections from the local law enforcement officers. Under S7.9.4 Motorcycle headlamp modulation, of Federal Motor Vehicle Safety Standard No. 108, 49 CFR 571.108 Lamps, Reflective Devices and Associated Equipment, specifies that a headlamp on a motorcycle may be wired to modulate, provided that it does so in accordance with the requirements prescribed in S7.9.4. With respect to Federal preemption of state laws, 49 U.S.C. 30103(b) provides in pertinent part that: b) PREEMPTION - (1) When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.

This means that, under 49 U.S.C. 30103(b)(1), a State may have its own standard which allows a motorcycle headlamp to be wired to modulate in the same manner as prescribed under S7.9.4. However, since the Federal standard specifically allows a modulation of motorcycle headlamps, a State may not establish or continue in effect a standard prohibiting a headlamp that modulates in accordance with S7.9.4 of Federal Motor Vehicle Safety Standard No. 108. When in doubt the Feds win over the state every time on this one.


Q. I had a head gasket replaced on a Chevy Trailblazer and the head gasket still leaks. The shop had the car for a month and damaged the passenger side rear. They also did 5 or 6 unauthorized repairs that had nothing to do with the head gasket and were not needed. They said they would pay for the $886.00 damages but want me to pay the $1886.00 invoice. My question is, am I liable for the repair that still is not right, and am I liable for all the unauthorized parts they replaced? Would your same advice apply to my motorcycle?

- Daniel Johnson, ABATE of Illinois member

A. Daniel: Thank you for sharing your legal issues with other ABATE members that read this column. Your question is a common one that we get and it applies to motorcycles as well. The quick answer to your questions is no and no. More specifically, the garage has to fix what they have damaged. (You should check your insurance policy to see if you have coverage for the damage to your Blazer. If you do and the deductible is low, you have the option of turning it over to your carrier for payment. Get advice from your agent as to your options. If the insurance company pays they will go after the garage for reimbursement on their nickel.) This will take you to the issues of failed head gasket repair and unauthorized parts. Your insurance company will not help you with these issues.

Clearly, the garage can not charge you for parts that were added without your agreement. And you should not pay for the failed repair on the head gasket. You should be suspicious that "other repairs" have been added to offset the cost of repairing your vehicle, but it also could be a case of bad communication. All legitimate repair facilities define the work they will do and usually provide an estimate. I understand that the garage did not prepare an estimate. This creates a "he said; she said" scenario. But I believe the court will give you the benefit of the doubt, especially since you have been using this garage for many years. They are in charge of clearly defining the work to be done. I know that they may have meant well when they put on the additional parts that they thought were needed, but their problem is that you did not want this work done. They should have called you to confirm; they did not. Point out that the head gasket still leaks and that was the only repair that you wanted done. Make an appointment with the contact person at the garage and go armed with the points above. Good business people will want to address your concerns in a constructive way. The facts are: they damaged your vehicle while doing a failed repair and put on unrequested parts. Something is wrong here. If they fail to do the right thing, contact the Consumer Protection Division of the state Office of Attorney General. If they can’t help, Small Claims Court may be your only remedy. My bet is they will want to keep your business and make you a satisfied customer.

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. And, 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

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2011, A.B.A.T.E. Legal Services