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Ask Our Lawyer - January 2006

An Insurance Nightmare

How it is Not Supposed to Work

Bill and Jeanie Kapp are the all-American couple. They both work jobs and live pay-check to pay-check. They vote and pay their taxes and are raising a 12 year-old son. They are socially responsible in that they have liability coverage for their cars and motorcycle. They both work, so they have two cars to commute to and from work. Jeanie will tell you that her car is not worth enough to have collision insurance coverage.

Now for the story: about 4:00 am (you know the time – when most drunks are coming home), the Kapps heard the crash from hell in their front yard. When they looked out, they saw that a drunk had collided with their second car parked in their driveway. The drunk fled the scene on foot, but left the keys in the car. The cops visited the car owner at his home. According to the police report, the owner’s son had been at the Funky Monkey, smelled of alcohol, and had red eyes.

He could not explain how the car keys were in the car that had smashed into the Kapps’ car and totaled it. The cops are getting finger prints on the beer bottles in the abandoned vehicle. (I forgot to mention that the police reported that the pants that the son of the car owner was wearing were wet from the knee’s down – at four in the morning?)

The owner’s son claims he was not driving, which is not a novel contention in light of the possible criminal charges. While the cop was there, the owner made no mention that he thought the car was stolen. Only later did they file a stolen vehicle report.

Now for the insurance rub: The owner’s insurance carrier says that because the owner’s son claims he was not driving, they are NOT going to pay for the damages to the car which the Kapps desperately need for commuting to work. What is wrong with these people? A.B.A.T.E. Legal Services will find out and will report next month. We hope to report that the insurance company did the right thing and paid the Kapps. We will see.

One Great Victory for Motorcyclists – Nationwide

A.B.A.T.E. Legal Services continues to fight for riders. In a case that is still in the early stages [our motorcyclist was t-boned by a kid – a case of absolute liability]. Instead of being apologetic, the insurance rascals had the gall to assert that our brother’s exercise of his right not to wear a helmet could be used to reduce the amount of damages available from the scofflaw who hit him.

In motions filed by your A.B.A.T.E. Legal Services lawyers, we argued that the insurance company could not seek to require helmet usage by penalizing a rider when state law does not require helmets. The insurance company tried to argue that failure to wear a helmet was an unreasonable failure to avoid an injury or a failure to mitigate his damages.

A.B.A.T.E. Legal Services lawyers pointed out that the insurance company was trying to impose a helmet requirement illegally when the state legislature has refused to do so. In short, the insurance company was asking the court to ignore State Law!

In a recent ruling, the court agreed with A.B.A.T.E. Legal Services and refused to allow the insurance company to argue that our brother rider acted unreasonably or failed to mitigate his damages. The case will continue, focused on the real issues of the damages caused by the negligent motorist.

It’s but one small victory in an on-going war. A.B.A.T.E. Legal Services is there, in the middle of the battle to protect your rights.

No flashing your colors

Q: As a regional director, I hear complaints about the police giving tickets to motorcyclists for lights on or under their bike. The police in Indiana use Ind. Code 9-21-7-10 and Ind. Code 36-8-12-11 to write these tickets.

The officer will stand in front of the bike and if he sees any light or reflection you get a ticket. Red, blue, and green are the colors the police pick on most but one person had amber. None of the lights were flashing. What can I tell my people to do?

A: Unfortunately, not much. In Indiana, Ind. Code 36-8-12-11 is very specific. In order to have a blue light you must be a member of a volunteer fire department. Ind. Code 9-21-7-10 is more difficult. That statute bars red, red and white or red and blue lights from being visible from the front of the vehicle.

Flashing lights are also banned. Other states ban flashing, rotating or oscillating red, white or blue lights, as is the case in Illinois. Ohio bans flashing lights, except for turn signals or hazards and flashing, oscillating or rotating red, blue, red and white or blue and white lights.

If the cop is just messing with them – that is an issue you may want to take up with the sheriff or the prosecutor. An issue may be – does a reflection count? The statute says the light may not be visible – does that include reflections from water or a sign from behind or chrome or the bike itself?

The statute does not answer that question – and does it or should it make any difference? The purpose of the statute is to avoid confusion with emergency and police vehicles. In my judgment, the statute gives the cop too much discretion.

George Tinkham gets his One Dollar and Fifty Two cents worth!

A.B.A.T.E. Legal Services’ own George Tinkham wrote to tell us about his new baby:

by George Tinkham

When I first became interested in motorcycles as a farm kid in the late ‘50s – early ‘60s, it bothered me that Harley and Indian had air cooled V-twin engines with the front cylinder blocking the cooling air flow to the rear cylinder. I reasoned that, if the idea was to have air cool the cylinders, why weren’t they stuck out into the air flow where they would be cooled?

Later, I found that BMW had been building bikes for years with the cylinders where they belonged. As practical and timeless as the BMW boxer may be, it still did not have the V-twin design that I loved. Then in 1967, Moto Guzzi produced the “V 700” with a transverse V-twin engine and shaft drive. Wow, my dream bike was finally being made!

You can imagine my surprise when I found that Indian made a limited run of transverse V, shaft drive motorcycles during WW II. This gorgeous bike had Indian’s girder front fork, foot shift, and hand clutch. Except for its flat head engine and weak brakes, it was essentially a modern bike.

For years I have dreamed of owning this rare and exotic Indian model 841. Finally this fall, three (yes, 3) Indian 841s were auctioned separately on e-Bay. I didn’t bid on the first because I couldn’t justify getting another antique when my ’48 Chief was not roadworthy. The second one sold for more than I would pay for a non-running bike. The third one, however, seemed just right.

When I placed my bid maximum for that third machine, I worried about losing it by a few cents to someone else who had the same maximum in mind. To play it safe, I gave a maximum of $1.52 over my earlier, pre-determined max bid. As it turned out, I won by that $1.52!!

Last week, a buddy drove with me to Oberlin, Ohio (just this side of Cleveland) to get the bike. It is now being prepared for showing at the Douglas County Museum, the A.B.A.T.E. Swap Meet bike show, and the Illinois Moto Guzzi Rally. Mike Irwin helped me find this bike on e-Bay. Hound Dog Cramer loaned his truck to me to get it. Brian “Hop Sing” Oliver shared driving chores with me to bring it back to Illinois. Rod Taylor provided a much-needed place to stay in Indianapolis on the way back.

Yes, thanks to these good friends – and the $1.52 – I now have my dream motorcycle.

From Rod: Happy to help, George, for all the times you’ve helped us.

By the way, George Tinkham is one of the most talented lawyers in the country. Not only was he a graduate teaching assistant at the University of Illinois Department of Physics (one of the best in the country), he was also a founding father of A.B.A.T.E. of Illinois.

He served with distinction at the EPA, and as one of the head lawyers in the Illinois Department of Transportation, no one in the State knows more about transportation laws [in fact, he wrote many of them] than George Tinkham, no matter what some foreign lawyers might say. A.B.A.T.E. of Illinois, and this lawyer, is proud to count George as one of our own.

Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

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 rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services