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Ask Our Lawyer - January 2011

Motorcycle versus tractor - Who wins?

Q: My girlfriend and I were recently involved in an accident with a piece of farm equipment that was operating on the roadway. We were both injured, but I’m not sure if I want to hire a lawyer at this point. What can I do to protect myself while I decide what I need to do?

A: There are a number of things you should do before too much time goes by. These are normally things that the staff at ABATE Legal Services will do for you, but if you want to wait before making that decision, here the steps to take.

* Don’t give a recorded statement to the insurance company.

* Get the police report. This will name witnesses and will give the reporting officer’s version of what happened.

* Identify witnesses. Get contact information.

* Take color photos of the accident scene (skid marks, sight obstructions, “No Passing” signs or stripes, traffic signs, etc.). Note posted speed limits.

* Take color photos of property damage – of both parties’ damaged property, if you can.

* Take color photos of personal injuries. Do not be shy or modest.

* Keep a journal (some use a calendar) of medical care: prescriptions, therapy, X-rays, doctor visits.

* Include physical symptoms in your journal.

* Keep track of missed work and social opportunities.

* If you are not at fault and received a traffic citation, fight it. Hire a lawyer if you must.

* If the other party or their insurer will not pay for your damages, consider hiring a lawyer to prosecute your claim.

I hope this information is helpful. Feel free to call us at ABATE Legal Services if you have any questions. I wish you and your girlfriend a full and speedy recovery.

Selling Overseas

Q: My name is Jack Yahle and I reside in Dayton, Ohio. I am a Life member of AMA and have been riding since 1960. I am selling my 2004 BMW R1200CLC, and have advertised on the net on all the BMW web sites. I recently received an E-Mail from a gentleman from the United Kingdom. He asked that I provide him with some additional specifics, as well as photos of the bike. After meeting his requests, he replied that the bike was exactly what he was looking for. (The R1200 series of BMW's are not plentiful in England.) He agreed to pay my asking price of $8,000 US and said he would pay for the shipping to the United Kingdom. I would arrange for the shipping and he would include the price in his check to me. ABATE members that I have talked to have warned that there are a lot of scams going on and that the financial arrangements should be more secure. I’m not sure what I need to do. Do you have any thoughts? The deeper I get into this deal, the worse it seems. I suggested a wire transfer and the buyer wants to send a Registered Bank Check. I sent him some quotes from stateside shippers, at first he agreed to one, however later he said that he had a friend in London that was in the business. I have just finished E-Mailing him to forget about this deal.

A: You’re right to be concerned. There are a lot of ways this kind of deal can go bad. As you’ve identified, making sure the payment is good is one of the biggest problems. I think you need the funds in hand prior to shipping. This means you cash the check and make sure it clears before you even think about sending the bike. Your remedies are few if the buyer is up to no good. I had the experience of a Canadian who had some parts that I wanted to buy. Things were well until he rejected my suggested shipper and said he had a friend. Sound familiar?

Jack responded to our conversation with some additional information:

I certainly hope my story benefits other readers. I was a little suspicious early on, based on some of the e-mail I received from this guy. At first it sounded like I was talking to an actual Englishman by his manner of speaking (using British English terms like lorries, etc.). Later, it was as if I were speaking to a different person. I am glad that the deal was nixed! There were just too many indicators of potential problems, such as wanting to use his friend’s shipping company, and not agreeing to a wire transfer. Thanks for your assistance, Rod.

You Can Do it Yourself

Small Claims Courts and How They Can Work for You

Classic situation is this: you are riding down the highway from heaven that turns into the highway from hell. Despite due diligence you miss the uneven black top, ( RoadHazard.Org has sent the state notice) your ride takes exception and dumps you. You escape without injury, but it is going to cost you $1500 to get your bike "buffed" out as John Candy use to say. There are not enough damages at stake to get hard core about litigating the claim over the state's responsibility for the damages caused by its omission. What do you do? SMALL CLAIMS COURT IS THE ANSWER. Here is how you go about it.

1. Get on the internet and find the nearest small claims court in your area. Go visit the court and talk with the clerk as to how you file a complaint against the state. Usually forms you need can be found on the internet or the court will have them if you can't get them on the internet. Make sure the court can handle the amount of your losses. Get the clerk's name and direct number in case you need to call and ask more questions. Good luck on getting the clerk's number. But you get the idea – get to know the court's staff and ask for help. They can give you tips as to what the judge expects. Try going to the court late in the afternoon or on their slow days so the court staff will have time to talk and teach. Most will oblige.

2. After you file your complaint, the court will set your case for an initial hearing. This is to see if the other side will show up. If they don’t show, the court will default the other side, which means you will get a judgment. There is no chance that the state will be a no-show, so you might try talking with state about skipping the initial hearing and getting a firm trial date. That will also be a good opportunity to discuss settlement. Offer to show the state your photos of the road defect and give them the name and numbers of your witness(es) who support your claim. Give them a copy of your repair bills/estimates. Tell them what you will take to settle your case, but remember to calculate your loss of use and expenses related to getting your bike repaired – in other words give them a complete list of your damages. Check your state as to any special notice requirements required by the state before you can file your claim. These are on the internet.

3. Remember this procedure should work with most claims within jurisdiction of the court. Small Claims courts by definition are limited in the dollar size of the cases they handle. Check with your court as to that amount and the nature of your claim before deciding if this court will work for you.

4. If your case goes to trial, do not panic. Remember that you are telling the story of how you were damaged and why the defendant is responsible. Start your story at the beginning and go chronologically to end. Before you go to court, practice your story before your family and friends. Document everything. The rules of small claim courts are relaxed so that regular folks can present their claims. Do not be intimidated – this is your court and is designed to work for you.

5. Let us know what and how you did. We would like to write about you. Of course, if you have questions during the process, call us.

Good luck asserting your rights.

A Cautionary Tale from a Good Friend – Life after Loss of a Leg

On September 20, 2003 I was struck by a drunk driver while riding my motorcycle. It was reported as a head-on collision as my left hand and handlebar hit the driver’s side head light area. The crash bar of my Road King wrapped around my left leg and smashed my foot against the motor. After spinning on the right side of the bike, hitting a road sign, and being thrown about thirty yards, I slowly began to take inventory of my injuries. My left hand was pretty well busted up, but I could wiggle my fingers, and I had a compound fracture in my left leg.

After seven surgeries in ten days, my doctor advised me we needed to amputate below my left knee. Not wanting to anguish about it, we did the amputation that day September 30, 2003. So it was done. Reality began to set in shortly after and I will never forget the look on the faces of those who visited me, it was sympathy. From that point forward I hated the word sympathetic as it has the word pathetic in it.

My father and I have a thing about tears and never showing them. I only allowed myself to cry about five minutes a day about this mess in the days following the amputation. I decided I wasn’t going to dwell on it, at 42 yrs. old I had plenty of life to experience ahead of me.

In the months preceding this accident, I had filed for divorce. The job I had did have disability insurance, which I had to pay for, but after child support and health insurance payments, I was left with about $650 a month and a $1000 mortgage. I lost my home the next spring. I used to say, “I lost my wife, my leg, my home, and my Harley, but I miss my Harley the most”.

I worked hard to get back to walking with the help of a prosthetic leg and was walking by Christmas, 2003. I managed to take my first ride after the accident in the spring of 2004, through a friend loaning me his Harley (Rod Taylor, Abate Legal Services). Now that’s a true friend! In August of 2004, I went back to work. I drive an 18 wheeler and so many times throughout the process I felt alone, unwanted, and unattractive. What I learned about patience, “It’s always there waiting for you!”

I had filed a lawsuit against the guy who hit me, but his minimal coverage didn’t even cover the medical bills. A couple of years later I found myself getting infections in the knee of my amputated leg, which required additional surgery in 2008. My dad passed this same year. When I returned to work after healing from my surgery, there was no work to be found. Many people say I inspire them because of my attitude and outlook, which could be characterized as exceptionally optimistic.

In 2010 I married the most beautiful woman and we are fortunate to enjoy pure love. I also got a new nickname, “Stump”.

I would like to end this story with a few thoughts. “Life is something to experience, not achieve. It is about the relationships we create and nurture, not about money and stuff. I feel very blessed. I experience many freedoms in the USA and have never gone a day wanting for food. Love is the greatest experience of all.”

First and foremost, Prayer Works! May you be blessed today, because God loves you.

Jim Wampler, ABATE of Indiana member

P.S. Never ride faster than your Guardian Angel can fly!

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.

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