Ask Our Lawyer – March 2021

WHY SHOULD I EVER GO THRU MY INSURANCE COMPANY TO REPAIR MY BIKE WHEN THE OTHER SIDE IS AT FAULT?

Q. The little old lady with blue hair backs over your motorcycle in a parking lot and causes significant damage.  She doesn’t know what happened.   Here is the question.  “Do you turn the claim for repair over to your motorcycle insurance company if you have collision coverage, or do you try to get the lady’s insurance company to pay?  Good question.

A.  Since you are not responsible for the damage – she is – you have some choices if you have collision coverage for your motorcycle.  So, the first thing is to confirm that you have collision coverage on your bike.  If you do, your choice is easy.  Turn the claim over to your insurance company.  Why, you ask?  Since the little old lady caused the damage and it is her fault, some believe that they should make the lady’s insurance company pay and leave your insurance company out of it.  Wrong. You hired your insurance company to take care of you.  Let them.

Here are the advantages of having your insurance company pay, especially during riding season:

1. Most of the time your insurance company has an immediate obligation to pay.  Otherwise, if you turn the claim over to the other insurance company you have to wait for that company to investigate and determine liability.  Then that company has to estimate the damage all of which takes time – your riding time.  And good luck getting the adverse to rent you a motorcycle while yours is getting fixed.
2. Your insurance company is on your side and has a duty to treat you more fairly than the other guy’s insurance company.
3. Your rates will not go up if you go through your insurance company.  Some will tell you to the contrary, but they are wrong.
4. The only disadvantage of going through your insurance company is if you have a deductible, you may have to pay that amount before the body shop will let you have your motorcycle, but you can collect deductible from the other side.
5. Some states only require $10,000 of property damage coverage so if your damage and your insurance coverage is more, definitely go through your company.

Here are the disadvantages of going against your insurance company:

1. As said above, you may have to pay the deductible amount to the repair shop before they will let you have your bike, but your insurance company will collect the amount of damage it is owed and your deductible from the lady’s insurance company and will send the deductible to you.
2. You may not be able to collect amounts for the rental of another motorcycle from your insurance company – more about that later.

Here are the disadvantages of going against the other insurance company:

1. Takes time.  They have to investigate your claim and determine liability.
2. They may send you to “special estimating” facilities.
3. They have no duty of loyalty.  They are the opposing side.  They are the Germans.

THE PERFECT CLIENT

I have spent a lifetime dealing with those who profile bikers and attempt to portray motorcyclists as less than regular folks.   Some people will do that in trials to prejudice a jury against bikers, in hopes to make them look bad, so they will give them less money.  I look forward to presenting motorcyclists as they are – just like everyone else.  You never know who rides anymore as motorcyclists may be the neighbor next door.  They work, have families, pay taxes, vote and RIDE.  But every once in a while, you get a biker that looks tougher than Arnold Schwarzenegger in the Terminator.  That stereotype is mostly gone.  After decades of representing bikers, I am good at presenting bikers as regular folks, even though some may appear differently and live a lifestyle unfamiliar to some.   If I have done my job, the juries I pick appreciate the client as just another citizen, looking for the justice we all want.  I love my job.

Then along came a new friend as a client, Vincent Ray.  He loves to ride and spends his work time training truckers – a tough job for a tough man, “a rub dirt on it kind of guy”.  If a fight breaks out in a bar, you want him on your side because that will be the winning side.  He is like Alec Caress in Blazing Saddles, if you shoot him, you will just piss him off.  And you have no doubt that he could knock out a horse with one punch from that mighty right hand.

Fast forward.  Vincent and his bride Theresia need my help.  I will present Vincent as the man he is, a normal, hardworking, voting citizen.  But looks sometimes deceive.  No question about it, his size puts him into the tough guy category, and can even be a little intimidating.   Forget the size thing.  Once you get to know him his big heart melts you.  Just ask his wife Theresia.  And as a school bus driver for kids, she fits into the big heart mold as well.

But I am privileged to present the honest facts about Vincent – he is a big guy who rides.  So I scratch my head and reach into my past.  How best to introduce Vincent to a jury?  Lawyers usually don’t miss much about people, but I didn’t see this coming.  Had no clue.  Nothing about him would steer me toward the information I am about to share.  You ask what possibly could I have learned that would have helped to introduce Vincent to a jury and the adverse lawyers?  How about years of his background that would melt the hardest hearted German farmer on a jury – the guys that say no to everything.   Vincent had been a kindergarten teacher teaching art to five year-olds for 8 years, and after that, he was an elementary school teacher for sixth graders for another 8 years.  He loved that job and would still be there if he could have learned how to live on the salary of an elementary school teacher.  The Vincents of the world usually don’t shout out their good nature.  Sometimes it is hidden.  Sometimes you have to drag it out of them, as I did with Vincent.   I see Vincent in a special light now, and I predict a jury will too, despite his intimidating size.  I am a know-it-all lawyer, but Vincent taught me something new.

MOTORCYCLE RIDE ORGANIZERS – CALIFORNIA TO THE RESCUE – GO FIGURE

This story is worth repeating as we soon will be at the beginning of benefit ride season in the Midwest. A California Court of Appeals ruled in favor of a ride organization.  In that case a couple injured in a recreational motorcycle ride sued because the ride did not have a police escort.  Plaintiff was an experienced rider and had signed waivers for previous rides, but somehow got in the ride without signing a waiver.  The Court of Appeals ruled that the injured couple “assumed the risk” of the ride.

In this case the couple on the ride were injured when a van swerved into their lane causing a collision.  The court ruled that the couple had waived any right to sue even though they had not signed a waiver for this ride but had signed such waivers in previous rides. (waivers are still needed but this case helps with those that sneak into an event without signing a waiver)  The court held that the risk of participating in a motorcycle ride with a large number of participants along public highways is self-evident.  And the risk of being injured while on a motorcycle procession is well known as all rides do not have police escorts.  The rule is that a voluntary participant in a recreational activity cannot recover damages for injury from a co-participant or organizer if the injury arises from a risk inherent in the activity and the defendant does nothing to increase that risk.  The court held that the lack of police escorts did not increase the risk of injury on a public highway.

Even though this is a California case it can be cited to other courts for its good logic and presents a victory for all organized motorcycle rides in this country.  Motorcycle ride organizers can breathe a little easier with this court decision if it becomes the trend in all states.  I expect Illinois, Ohio and Indiana courts to follow this trend.  Warning:  Still require waivers in case the above does not work.  Remember my mantra:  You never need a waiver until you need a waiver.  Got it?

NOTE: Marc Falsetti was the legal beagle on this one.  Marc, thank you for your good eye in finding the case.

JUST BECAUSE A COP SAYS IT, DOESN’T MAKE IT SO.  WHEN AN OFFICER’S OPINION AS TO CAUSE OF AN ACCIDENT COMES INTO EVIDENCE

Q.  A woman driver pulled out in front of me from a stop sign and claimed she did not see me. I had the right of way and was not speeding.  I applied the brakes but still hit her.  Sad to say, but I said some mean things to her at the scene as I was in pain and could not believe she did what she did.  Now her insurance company is trying to turn my bad language against me and even has the officer testifying against me as to the cause of the accident.  My case should be a simple one in that she is the one at fault but now I feel like they are putting me on trial unfairly.  Can they do this?  And do I need a lawyer?  ABATE OF INDIANA MEMBER. (case now concluded and information released)

A.  A police officer’s testimony as to the expert cause of a crash will be admitted during a trial only when the officer has been qualified as an expert having sufficient knowledge, education and training to express such an opinion, as not all police officers have such expertise.  Unless speed or braking is an issue, your case normally would not need an accident reconstruction expert.  She failed to yield to your right of way – case should be over.  Of course the officer may testify as to what he saw and heard (if relevant and material), but it is up to the trier of fact (usually a jury) to decide the cause of a crash, unless expert testimony is needed.  Issues such as speed, braking, coefficients of friction are the areas in which motorcycle experts testify, but it does not appear that the adverse is raising any issue as to speed or braking.

Always be mindful that the investigating officer might be able to testify as to statements made by you and witnesses about the crash and to each other.  These statements could include any names that you thought were appropriate to call the little old lady with blue hair when she missed the stop sign while talking on her cell phone. Your lawyer could file a motion with the court and try to suppress such name calling as inflammatory and really not relevant to the cause of the crash. The court may or may not grant your motion. So, you may be left with trying to explain your verbal treatment of the sweetest old lady (at least in court) that ever ran a stop sign.  Some jurors might understand the opportunity to express yourself in the heat of injury and severe pain, then some might not, especially the sweet old ladies on your jury.  If this ever happens again, help me – help you, by muffling yourself at the scene.  As Sergeant Barnes of the VietNam movie “Platoon” said, “take the pain”.  And yes, you need a lawyer.

THE ART OF REASONING WITH THE UNREASONABLE (coming soon)

“To argue with a person who has renounced the use of reason is like administering medicine to the dead.”  Thomas Paine