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Ask Our Lawyer - November 2009

All Rise and Please Be Seated– Ape Hangers

Q. I received a ticket from the local cop for my bars being too high. I have the 12" mini hangars. Can I fight this as the ticket will cost $164? I am a disabled Vietnam vet – I jumped out of a helicopter in what I thought was short grass so I can not afford the ticket. My bike is safe with these bars and I have never had an incident in over 40 years of riding. Help!

- ABATE of Indiana member

A. The law requires an actual measurement. Many states refer to an angle and the arm position as the reference guide. In your case, you have advised that the officer measured the bike while you were standing to the side of the road – off the bike. Indiana law (IC 9-19-7-2) requires the arresting police officer to take a measurement when the bike is occupied. I know that seems like a slick lawyer technicality to latch on to, but the State has the burden of proof and must follow the law as written by the legislature. Since the measurement was taken by the officer while the bike was unoccupied, the officer has no evidence as the measurement of the bike while occupied as required by law. If the state fails in its proof, you win and save $164. P.S. I would not ride the bike to your court hearing. You never know when a judge might want to go outside with a tape measure and ask you to take a seat. Some judges are like that.

Good Friends in Good Places

John and Brenda Wracher have their hands full. Three kids, a business to run and a life to live. In August, all of that changed. John came out on the short end when a semi trailer in a curve got him with the left rear duals. After the crash, the driver attempted to move his truck even though John's motorcycle was wedged underneath the left rear duals. As the semi scraped his bike forward, sparks ignited the fuel from the motorcycle. Enter good friend Larry Proctor: Although John is lying in harm’s way with horrific injuries and not able to move, his riding buddy Larry shielded John from the flames with his body. John managed to survive the fire, but will need a long healing process for the fractures and crush injuries.

Enter more good friends: John has a machine shop with three employees plus his mother in law and wife – the kind of business that makes up the mainstay of America. Of course, John is not able to work during his recuperation. Wonderfully, other similar businesses in the community have come to the aid of John and Brenda's business, Accra Machine Shop. Doug and Mary Pat Lingsch, owners of MDL Manufacturing and Larry Cornman, owner of Platt and Sons, announced to their employees that the Wrachers need help. In response, those employees come on their own time to help the Wrachers with whatever is needed to keep the business going. I am pleased to report that the business is continuing and will be there when John gets back on his feet thanks to all of these volunteers.

But I am not done yet. Enter even more good friends: The Moose Riders have pitched in and helped Brenda with whatever is needed at the house. This story reminds me of the custom in Southern Illinois when a farmer is injured during the planting or harvesting season. All of the neighbors would come together to complete the farm work and help the family. Just when I am about to give up on humanity, something like this happens. It is a good reminder that when one of us goes down, we have many to pitch in and help out.

When the System fails the Biker

Q: My family is involved in a case regarding an accident which killed my brother, and I would like your thoughts. This summer, my brother was driving home from work on his motorcycle at night. A teenager was going home and received a cellular phone call. While on the phone call, she negligently proceeded on a state highway into the path of my brother. She fled the scene but returned later. My brother was pronounced dead at the scene. This young lady has also been involved in at least two other motor vehicle collisions.

She has only been charged with a failure to yield ticket and given a fine, probation, and community service hours. My family and I do not feel that the punishment fits her crime. We are not asking for another life or family to be destroyed, but justice to be served and a review of this case. She has clearly shown that she is a threat to herself and society and shows no remorse.

-ABATE of Ohio member

A: It frustrates me when the police or prosecutors refuse to do enough when it comes to accidents that injure or kill bikers. On one hand, we as bikers are more vulnerable, and police need to take that into account, especially when the person who caused the accident was intentionally distracted, such as by being on a cell phone. On the other hand, excessive criminal prosecution of someone who, without malice or intent, caused an injury or death, destroys two lives, not just one. In the end, it is important to realize that nothing anyone can do will bring back our loved one, and both the criminal and the civil proceedings are part of the process by which the wrong-doer can make amends. We need to let our prosecutors and judges know that intentional distraction while driving is a jailable offense, just like drinking alcohol and driving.

Covering your Directors

Q: I have been directed by my chapter to inquire of your legal opinion, about our chapter’s retention of our director and officer's insurance policy [currently standard operating procedure]. Some members argue that our standard procedures, needs and the benefits offered should be weighed against the actual procedures used by our Board. In our organization, no decisions can be made with out membership approval.

- ABATE of Illinois member

A: Our stock answer is usually that the more insurance, the better. In this instance, you may catch us blinking. In most states, the directors and officers of a non-profit corporation are generally immune from liability for decisions made in the course and scope of their responsibilities as an officer or director and those officers and directors are only liable for intentional acts of malfeasance (which are generally excluded from coverage anyway). Accordingly, if price is the issue – and it usually is – a rational choice could be to cancel the policy. Bear in mind, however, that just because you are immune from liability does not mean that you are immune from getting sued. If you cancel the policy, the insurance company would not be there to defend you and to file the papers to get a wrongfully sued director or officer dismissed from a lawsuit. On the flip side, most homeowner’s policies contain coverage for members of non-profit boards, although using the coverage in the event you get sued may result in increased insurance premiums.

Where there’s a way, there’s a will

Q: Hello, my husband is a member of ABATE. We are wanting to get a simple will. Can you help us with this and if so, what is the cost? Thank you.

- ABATE of Ohio Member

A: We are happy to provide wills to ABATE members free of charge. All you have to do is go our website at www.abatelegal.com and download the forms. If you can get to that, call the office and we can mail the proper documents to you.

Assessing a Trespass

Q: The local township assessor wants to enter onto my property to see if my assessment should change. My property is posted “No Trespassing” and I have told the assessor that they do not have my permission to enter the property. Can I sue them if they enter anyway?

A: Could be, but it may depend on your local laws. First of all, the type of trespass you are discussing is civil, rather than criminal, trespass. Not all persons who enter a property are trespassers, of course. The law recognizes the rights of persons given express permission to be on the property ("invitees") and persons who have a legal right to be on the property ("licensees") not to be treated as trespassers. A utility meter reader would be a licensee, since most agreements to provide utility service grants a license to the utility to check the meter. Other statutes may give various officials immunity from trespass or exclude the official from the definition. For example, some jurisdictions allow a county surveyor to enter onto a property to perform his job. Assessors may have similar protection, either under state or local law. If there is no protection in the state or local laws, then the assessor may not have the legal right to enter your property. Remember that the law does not give the land owner a “self help” remedy in the case of trespass. Rather, the landowner can order the trespasser off the property but should then call the local police authorities to remove the trespasser.

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. And, ABATE members are not charged for recovery of damage to your motorcycle, and have access to a 24-hour toll-free telephone number.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2009, A.B.A.T.E. Legal Services