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Ask Our Lawyer - July 2011

MIRACLE RIDE A WONDERFUL SUCCESS--$250K FOR THE KIDS AT RILEY

They were all there: Gov. Mitch Daniels, radio talk show hosts Bob & Tom, Ed Schetter, Ex. Dir. of ABATE of Ohio, Jay Jackson of ABATE of Indiana, Doc Jones of ABATE of Illinois and thousands of others. They all came together to support Riley Hospital for Children. That hospital provides care for kids from all over the country and, in many instances, the world. Riley sets the bar for research for diseases that uniquely affect children. That this facility is located in the heart of the country is poetic and says something wonderful about us mid-westerners. Many of you have heard me say that the measure of a society is how those in it treat their children. By that definition, heartland citizens go to the head of the line.

This event would not be possible if it were not for the scores of volunteers. I will highlight some recognizing that many others need acknowledgment-- I will catch up with the missed ones later. At the head of the list is Gino Johnson. Gino, the world’s best CPA and former IRS agent, keeps us all honest and straight. We could not do with out him. Kathy Schulteti and her whole wonderful family and employees have been there from the beginning. Same for Rick Chupp and Cycle Outfitters. Marc Falsetti, our advertising guru, gets 8k to 10k participants every year. I am not sure how he does it, but he does. Judge Freese makes the ride organized and keeps us safe. Yackey is our first photographer, and Jad Porter seems to do everything. John Barto feeds us and feeds us well. The McAtees, first family of law enforcement, do the impossible and lead 8,000 bikers through numerous intersections safely. Every ride has had the involvement of the Farabaugh family, especially Deb who is our heart. Finally, ABATE is the back bone of this wonderful ride; and ABATE LEGAL is very proud that the planning for this ride started in our office in 1993.

WHEN TREES GET YOU DOWN - WHAT TO DO AND WHO TO NOTIFY

Q: I was in a bike accident Monday. A tree was hiding the stop light and I didn't see it until the last minute. I locked it up but ended up sliding through the stop light and hitting a car. I was given a ticket for running the red light. The officer told me that I could go to court, plead my case about the light being hidden and get the ticket dropped. He basically admitted that the light was hidden. Now, people are telling us to sue. We are not sue happy people, however, if the tree had been trimmed, this would not have happened. What can I do? ABATE member.

A: There are a number of things you can do to help yourself out and preserve facts for the case that you have. You are like a lot of folks in this country that have not been involved with filing a lawsuit and want nothing to do with that process. Sometimes a case like yours can be resolved simply by making a request that is well documented and compelling. In order to get to that position, get a series of photos approaching the light from the lane in which you were riding. A simple camera photo will do. If the city has already cut the branches, get clear photos of their recent work. Statements of the adjoining property owners and others witnessing the trimming by the City should be obtained as soon as possible. These witnesses are needed by you to confirm the obscuring tree branches and issues concerning any notice the City had of the hazard. You will have the burden to show how obscured the light was at the time of the crash . If the City (you need to make sure they had the responsibility for trimming the tree) has not trimmed the branches yet, a notice by you to them is in order. A copy of the cell phone photos should be emailed to them immediately. I will have RoadHazard.org send a notice to them as well. If you have a copy of the police report, send it to us. If not, we will order one for you. That will be useful in both locating the police officer who responded, as well as identifying how he documented the accident. He may have listed critical witnesses who can confirm our facts. You will need a statement from him admitting that the tree obscured the light asap before he forgets about your case. You must also notify your insurance carrier of your crash in writing. And send them a copy of your photos and a copy of the crash report.

When you are making a claim against a government entity, you will need to make sure you place them on notice of the accident. Most states, including Indiana, require that a specific notice be given to the government entity within 6 months of the incident. If you fail to do that properly you can lose your claim, so we need to do that one for you. In Illinois, suit must be brought against the government entity within one year of the incident. In Ohio, there is no notice requirement, but the suit must be brought within two years.

INDIANA, ILLINOIS AND OHIO, THE LAST GREAT HOLD OUTS, HAVE FALLEN - BARNES V. INDIANA, A PRECEDENT FOR EROSION OF OUR 4TH AMENDMENT RIGHTS?

We used to have the right to physically resist an illegal, unlawful entry into our homes by a police office. No longer. Now the thinking that is going around a majority of the states, including Indiana, Illinois and Ohio, is that the right to resist an unlawful police action is out of style or not currently acceptable in a modern society. What? We have enjoyed this right since the Magna Carta. That was in 1215 A.D. And this basic right has been reaffirmed numerous times by the U.S. Supreme Court. But now it seems that some states, Ohio, Illinois, and Indiana, included, hold that is old fashion thinking and that we need to modernize and be trendy. Supporters of this fashionable thinking list concerns that caused a majority of the states to go along with the crowd, citing, for example, that a citizen could get hurt, or that weapons are more serious today, or that the citizen could sue if he was wronged. Response: citizens could have always been hurt; is there any weapon more serious than a black powder, double barreled shotgun (circa 1850) with double-aught buck shot? and just because we have more lawyers and judges is not enough reason to squander our 4th Amendment right of privacy.

I, for one, honor our right to privacy. It is the nature of us. If the police officer does not have a warrant, he better not be coming into my house without it or my invitation. While I am not going to shoot him, I am going to let him know that he is leaving and pronto. If that means I shove him out my door, so be it. If I feel like it, I might even say please. If that right was good enough for over 700 years, why is it not good enough now?

There have always been proper exceptions as when the officer was in “hot pursuit”. But that does not and should not apply when you are home peacefully eating supper, reading the newspaper and the like. Sadly, Indiana has now joined her sister states in diminishing our basic rights enjoyed since 1215. I was always told that a man’s home was his castle. What’s next?

MY STATE DOES NOT HAVE A MOTORCYCLE LEMON LAW - AM I SCREWED? NOT SINCE MAGNUSON - MOSS ; A FEDERAL LAW

Q. I purchased a bike in Missouri. The bike has been in the shop more than I have ridden it. I am still having the same issues this year and it looks like I will miss more of this riding season. All I want is what I paid for - a bike that I can ride safely and enjoy. The dealership folks are nice people, but do not seem to be able to get to the bottom of my bike’s problem for a fix. Missouri does not have a motorcycle lemon law. What can I do? Is there a lemon law for motorcycles? How do I use a lemon law? ABATE member.

A. Seventeen states have lemon laws in this country. Motorcycles are covered by the lemon law in the following states: Arizona, Connecticut, Kansas, Maine (non-commercial),Maryland, Massachusetts, Nebraska, Nevada (on-road only), New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oregon, Rhode Island, South Dakota, Texas, Virgina, Washington (over 750 cc), West Virginia, Wisconsin, and Wyoming.

Each state has a different set of requirements. In general, in order to make a claim under a state lemon law, you will have to have had a specific number of repair attempts within a specific amount of time. For example, Ohio’s statute requires that there be 3 unsuccessful repairs of same defect, or 30 calendar days out of service, or 8 total repairs of any defects, or 1 unsuccessful repair of problem likely to cause death or serious bodily injury within shorter of 1 year or 18,000 miles. Other states have similar requirements, but the number of repair attempts, time out of service or aggregate mileage may be different. You will need to check with your state to see what the requirements are. You can generally get that information from your state’s consumer protection office.

All of them provide some measure of remedies and most of them vary with some providing that the thresholds of coverage apply after a down period of the bike. For example most bike lemon laws use 30 days as a measure, others use 15, 20 or in some states 40 days. In some instances the law requires you to be the original purchaser. In others you only have to be within the warranty period. It is fair to say that the lemon laws vary. When the automobile lemon laws were implemented quite a few years back, motorcycles were skipped in the process. Now that many motorcycle prices exceed the prices of cars and trucks, several states have taken a new look at including motorcycles in the lemon law protection group.

But even if you live in a state without a lemon law, you may have better protection at the federal level. The Magnuson - Moss Warranty Act provides a measure of protection for those who buy a bad bike. The cool thing about that act is that there is no specific notice requirement, the bike can be used (has to be within the warranty period) and there are no mileage restrictions. The purchaser is only required to show that the defect was not repaired after a reasonable number of attempts. Most state lemon laws have specific requirements for attempts at repair and days of lost service - the federal law does not. If you are successful, you can get a free replacement or full refund of your money and attorney fees. So, even though your state does not have a lemon law, you still have a powerful powerful remedy in the Magnuson - Moss Act. Even where a state has a lemon law for motorcycles, always include a claim under the federal act. There you have a double barreled shotgun. And with the threat of paying your attorney fees, you usually get a resolution. Just say Magnuson - Moss and I will bet you don’t have to call me. The only folks that bad dealers hate to pay more than their buyers is their lawyers.

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 © 2011, A.B.A.T.E. Legal Services

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