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Ask Our Lawyer - October 2010

Re-packing Heat

 ABATE Member Darwin Teague had some observations and corrections after reading last month’s column. Darwin writes:

I was a bit disappointed with your answers in last month's Ask Our Lawyer. Your advice to the first writer failed to explain reciprocity laws. It is legal to carry in many states if one has a license to carry in their home state, or in some instances, a non-resident license of another state. Of course, one must obey the law in the state they are in.

If you go to http://www.handgunlaw.us/ and click on a state, you can see which states honor another state’s handgun permits. For example, the first writer lives in Ohio. According to the website, with his permit, he can legally carry in most western states, but not in Illinois or Wisconsin, which do not allow ANY carry, or Iowa, Colorado, Oregon, Texas or California [ Texas does not have reciprocity with Ohio but does with Indiana]. The web site also shows the gun laws for every state.

Your second writer, who is from Indiana, could legally carry in Missouri, Oklahoma, Texas, and Arizona, but not in Illinois, Kansas, New Mexico or California. A Utah or Florida out-of-state permit also adds states in which one is allowed to carry. For instance, a Florida permit would add Kansas and New Mexico to the second writer's list.

Finally, I’m not aware of any state in which a permit is only valid in that state. I know of no such state...

Thanks for the comments, Darwin, and I’m happy to include your additional thoughts. You are correct that I didn’t go into reciprocity laws. As we can see from my discussion of Gary’s hypothetical trip, reciprocity is a tricky topic to discuss, since some states have agreements with some, but not all, other states. Since each state has its own reciprocity agreements, a holder will need to check on each state in which he plans on entering.

To show how unworkable our gun laws have become, let’s take Gary Seller’s question on how to get to California from Ohio on a motorcycle while legally packing. Heading west from Ohio, he is ok crossing Indiana, but when he gets to Illinois, he has to hang a left to Kentucky or a really long right to miss Wisconsin and Iowa. He is screwed when he gets to Colorado and the folks in Oregon and California will haul him away and keep him. Does anyone besides me think our guns laws are silly? Somehow, I used to think this was the United States of America. If we are going to have a Second Amendment, how about a Second Amendment in all fifty states? We either have a Second Amendment or we don’t. Last time I checked, we do. Shouldn’t it apply in all fifty states? It’s ironic that you can be a fine, upstanding citizen in one state and felon in another state, merely by crossing the state line.

Weird Wind – Bane of Motorcyclists

Many bikers go off the road violently and do not make it. Many assume they just lost it. I have another theory – weird wind. Dave Wilkerson is a member of ABATE of Illinois, and a biker’s biker – a motorcyclist perfected. He also happens to be a pilot – not just a pilot, but an airline transport commercial pilot. When it comes to wind, he knows all you need to know. Except a while back, Mother Nature threw him a new one – "weird wind." It was a hot day – real hot, gusty, on the flats of Illinois; just perfect for dust devils, wind shear – all the weird winds. Running good speed down the state highway, he noticed the violent wind from the left and the front end climb up first – then the rear wheel oscillation next; then a violent high side to the right. He may have been shoved to the right and just lost it. Who knows?

Looks like he may be back to walking, riding and flying in a few, if he is lucky. What happened and how do we learn from his experience? Jay Jackson, Executive Director of ABATE of Indiana and a MSF Chief Instructor, blames the incident on a micro-burst that nailed

Dave. Whatever it was – it was invisible.

Bikers and pilots suffer the same exposure. Years ago, I was flying with a buddy in a Cessna 140. He too is a hard core biker. I asked him about his greatest fear with flying. He said "weird wind." What can you do to avoid it? Be aware of weather that causes wind shear and micro-bursts, but other than that, it is like getting hit by lightning. To avoid that, you have to stay home, but that is not like us, is it?

Can insurance companies really discriminate against motorcyclists this way?

Last month, I wrote about an uncle who borrowed a brand-new motorcycle, trashing the new bike (and himself) in the process. Recall that because of costs, the nephew had no collision coverage on this brand new bike. I advised the nephew that a claim should be made against the uncle for negligently trashing the motorcycle in the hopes that his uncle’s motorcycle or auto insurance policy would provide coverage. Not so in Illinois, Indiana and perhaps Ohio. Of course, you always need to review the language of the policy, but in these states, property damage coverage for a borrowed bike is usually excluded.

As unbelievable as it may sound, this insurance company policy does not apply to autos that you borrow, only motorcycles. The same insurance companies advertise how well they take care of motorcyclists. We as riders should demand that they change that policy provision. Companies like GEICO, State Farm, Allstate, and Progressive, who all benefit from the motorcycle dollar, should do as they advertise and be biker-friendly.

Release the Lawyers!

Q: My local chapter is going to have an event, and one of the members has suggested that we use a release form and have the participants sign it. Another member said that they had heard that releases weren’t worth the paper they’re written on. What’s the real story?

A: That’s a good question, and it deserves a good answer. Fortunately, our ABATE Legal Services team member George W. Tinkham has done a good deal of work in this area. Here’s what George has to say:

Motorcycling events are more than just fun; they are an opportunity for club and A.B.A.T.E. members to know each other better, to exchange ideas, and to get fired up about A.B.A.T.E. and the protection of our freedoms. Sometimes, however, an event can lead to personal injury or property damage of a participant.

One of the most inexpensive liability-limiting measures is to require each participant to sign a release form before participating in the event. These agreements must be signed by each adult (eighteen or older) participant or the legal guardian of a minor participant in an event. Ideally, such a release should contain the following items:

1. Assumption of Risk. The participant specifically acknowledges the dangers inherent in the event and clearly states that he will assume all responsibility for his own welfare. This provision indicates that the participant is aware of the potential risks he faces and is making a knowing release of all future claims.

2. Release and waiver of all future claims. This is a contractual commitment whereby the participant promises not to make a claim for damages or injuries resulting from the event.

3. Consideration. Because the release is a contract, it must be supported by "consideration." This is something given by the sponsor in exchange for the release of future claims.

4. Age. All contracts must be signed by an adult. In most states, this is eighteen years old. If the participant is a minor, his legal guardian (usually a parent) must sign for him.

5. Indemnification. A participant's promise not to sue may not prevent his wife and children from filing claims against the sponsor. Therefore, it is important that the participant or his estate promise to reimburse the sponsor if anyone else files a claim based on the participant's involvement in the event. The participant's promise to defend and reimburse if such a claim is filed also protects the sponsor from the inconvenience of a claim. This provision is not meant to disadvantage the participant, but is designed to close what otherwise would be a "loophole" in this agreement.

A written release is virtually useless unless it is properly executed and the signing party knows what he is signing. The people at the registration table at an event, then, have the tremendously important duty of making sure that every participant has looked at, and has the opportunity to read, the terms of the release. Every participant must sign the release himself and may not let a buddy do it for him. The volunteers may have to get tough at times, especially with minors; however, a release contract works only if it is handled properly. Vigilance and effort are necessary to protect a chapter from liability.

Again, nothing can keep someone from suing a sponsor, but careful attention to details (including a release and indemnification agreement) can increase the chances of not being sued and of winning if a suit is filed.

As always, wise words from our brother George. Contact your state office to see if they have a release form that you can use and to review your event.

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.

If you have any questions you would like to ask the lawyer, please submit them to ASK OUR LAWYER, at rodtaylor@abatelegal.com. © 2010, A.B.A.T.E. Legal Services