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Ask Our Lawyer – November 2021

On Behalf of | Oct 19, 2021 | Firm News


It was a riding kind of day – the kind of day that all motorcyclists yearn for.  But it was not to be for a young motorcyclist riding on I-70.  He was traveling near the Ohio – Indiana line when he hit the road craters from hell.  Those defects had been there for years and half-assed patched by the state for years.  Sadly, the state didn’t get around to doing the patch in time for this rider.  The continuous set of craters sent his Honda Rebel into gyrations directing him into a guard rail.  I  hope he never knew.  I realize that to err is human, but the list of incidents at this location became more than that.  A callous disregard by those in charge.  But states are usually immune from a punitive allegation.  Many states also hide behind a monetary limit on the damages, injuries and death they cause.  Such was in this case.  Even more reprehensible, these states always claim “contributory negligence”  which, if successful, operates as a complete bar for claims of a family so injured.  And the state tried that here.  This needs to stop.

The surviving family was confronted with a governmental entity responsible for killing a son, husband and now father.  And that entity alleged that the motorcyclist was contributorily negligent, in short, the cause of his own death.   And they even claimed that the money owed to his survivors was limited by law.  In other words they did not have to fully pay for the losses caused.

This needs to change.  Our country operates on the rule that if you carelessly break something of another you should pay for it. It works as we normally don’t want to hurt another and if we have to pay for our screw ups we are more careful.   Governmental entities should follow the same rules and not get by with special rules or not having to pay the full amount owed.  Otherwise those states will dilly dally around with the lives of the traveling public and continue to half-ass repair road defects that should be repaired properly to save lives.


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 I’m 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, and namesake of a business school and former Board Member of the Indianapolis 500.  When the folks there discovered they did not have that photo –  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.


Q.  I was in a 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? 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 the ABATE Legal Services team deal with the insurance company for you!  But if you are on your own, 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 so your bills would be timely paid. Believe me, your insurance company will try to get their money back from the adverse or from your settlement.

Most insurance companies have policy language requiring reimbursement for medical bills  paid for you but 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.  We always try to negotiate that bill down.  Every dollar saved there is a dollar in your pocket!  ABATE Legal Services can help as 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.  It is a lot of what ABATE Legal does for you.

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


I remember the first time I heard a motorist, who had just run over a biker that cost a leg say, “I have insurance” and said he was sorry.  That driver was in his 90’s.  The insurance covering those he ran over was 10k.  The helicopter bill alone was 45k.  You do not want to know the amount of the hospital bill and future lost wages or the pain and suffering caused to a fellow motorcyclist and his family by this crash.  The State of Florida called it insurance (the state minimum at the time).  That is not insurance.  That was a joke to my client and his family.  While I am on the subject, limit your riding there at night.  I am sure that a lot of those passing you, coming toward you or turning into your lane can’t see, hear or even think good enough to be driving, but that is the way it is in that state.  At least you have a chance riding there during daylight hours.

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 health insurers will have a lien on those insurance proceeds.  So if your hospital bills exceed 25k guess who doesn’t get most of  the money in a serious crash – you. Here is my rule in a crash case.  You only want to know how much money you are going to put in your pocket – not everyone else’s.  Like the hospitals and the lawyers etc.

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 50k.  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 cost 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.  Those states should have a large billboard that says “Welcome to Florida – If you have adequate uninsured-underinsured insurance 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.

Let’s 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.  But that is not enough.  Get as much as they will sell you.

Generally,  the cost to upgrade the state minimum insurance to a 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.


Lastly I would like to express congratulations to our very own Hilary Barnes on her inclusion as a lawyer to the Super Lawyers “Rising Stars.”   You keep us all honest around here with your straightforwardness and genuineness, you make me proud to be your Father.