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Ask Our Lawyer - May 2009

Jay Jackson, Cat Herder, Wild Horse Rider, and a Pretty fair Windmill Fixer

He leads the unleadable and should be in the Motorcycle Hall of Fame

 Jay Jackson is the perfect motorcycle rights leader. He is quick to think, quick on his feet and quick to make friends of nearly all that he meets. He is impressive in presentation and equally at ease in full motorcycle gear addressing the leadership of one-percenters or meeting the Governor of the State of Indiana (with whom he rides). He is tapped by all to serve on the important committees concerning motorcycling rights and the well-being of motorcyclists. As the Executive Director of ABATE of INDIANA and a Director of the MRF, he leads the unleadable. By that I mean that he truly is able to inspire, direct, and coordinate the most independent of individuals and retain their respect. He is the ultimate leader and one who inspires – even with adversaries. Jay Jackson is a household name in the Indiana legislature and in the halls of Congress.

As Director, Chief Instructor, and Instructor of the Motorcycle Safety Division of ABATE of Indiana, Jay has presided over the training of thousands of motorcyclists – to date, almost 80,000. There are some states that barely have that many people. It is estimated by the Department of Education in Indiana, that those efforts have saved more than 700 Hoosier lives, countless injuries and untold property damage. That effort alone warrants inclusion in the Hall of Fame. But Jay has done more than that. He has perfected the Bingo Hall of ABATE of Indiana to the extent that the Bingo operation has become the poster child for the state as to how to run that kind of operation. He also presides over the Lawrence County Recreation Park – a facility dedicated to motorcyclists for off road adventures, training and family activities. That facility has been the recipient of grant funds because of its superior operation and continues to receive accolades, even from the non-motorcycling community.

As with most successful individuals, Jay is well rounded in that he is a perfect family man. Married and the father of two, Jay always makes sure his family comes first, and that is a difficult task with the chores he faces, but it is a task he manages perfectly – just like everything he does.

Jay Jackson should be in the Motorcycle Hall of Fame.

Something borrowed, something blue – something drunk?

Q. My child is getting married and we are planning a wedding reception at the local conservation club. There will be several friends of the couple in attendance. We plan to serve alcohol at the event. If one of these underage attendees gets in a wreck going home, what are my legal responsibilities? And what can I do to protect myself? Kim Tyger, ABATE member.

A. Congratulations on the wedding. As to your question, check with your insurance agent to see if you have host liquor coverage in your homeowner’s liability policy. If so, confirm that in writing to your agent and send me a copy. Even if you have insurance for this event, consider hiring a caterer for the alcohol, and then let the catering company do all of the serving of alcohol. This way you have passed that responsibility to the pros. They will provide a licensed bartender to serve the alcohol and who will know how to handle kids wanting drinks. It makes them the enforcer of the rules – not you.

PS – make sure to ask for a certificate of insurance from the caterer’s insurance carrier so you can verify the coverage.

Assembled Bike vs. Harley-Davidson

Q. I am a new ABATE member and wanted to get back into motorcycling. I I used to ride years ago and wanted to start riding again so I started shopping for a motorcycle. I learned that a finance company had a Harley Davidson Softail for sale. I bought what I thought was a Harley and negotiated a deal with the finance company to buy it. I gave them the money and they gave me a receipt for a “1999 Harley Davidson Softail” and away I rode. They also gave me a title. I took my new bike to my local motorcycle shop for a few adjustments. When I got there, I discovered that my new “Harley” was not a Harley but an “Assembled” motorcycle. Can I get my money back so I can buy a real Harley Softail?

A. Yes, if you were intentionally or unintentionally misled as to the make of the bike. It is clear that there was not a “meeting of the minds” in this transaction. Giving the benefit of the doubt to both you and the finance company, it is clear you thought you bought what your receipt/ bill of sale identified and that is a Harley Davidson. We will write a letter explaining this to the finance company. This company is a good company and should do the right thing and unwind the deal and give your money back. We shall see – stay tuned on this one.

Dusting or Just a Close Drive-by? Who Pays?

Q. My teenage son says that an automobile tried to run close to him and a friend while they were walking home. In the process, my son says he pushed off the car in an effort to avoid serious injury. The auto owner says that the “push off” was intentional and caused damage to the car and now the car owner's insurance company wants me to pay five hundred dollars for the damage allegedly cause by my son. Am I responsible for my sixteen-year-old son and should I pay them?

A. No. It seems that this "dusting" incident was started by the auto. The facts appear to support your son's version that he was protecting himself in this close drive-by. It seems he should get the benefit of the doubt on a car versus boy battle, but we do have a case of “he says – he says.” You are, however, responsible for any negligent/intentional acts of your son causing damage to an innocent individual. If the car owner was intentionally or negligently “dusting” your son, he should be responsible for any damage or injury (emotional or physical) suffered by him. I understand there is a dispute as to the intentions of the auto driver and how close he came to your son.

 

I also understand that there may be some bad blood between the two. You may want to call your insurance agent and get advice on whether to “turn this claim in” for their payment. In today’s environment many insureds do not make claims in this small dollar category if the result is higher premiums. Your agent should know the inside information on that one. In all cases, you have a duty to put your insurance company on notice of this incident if you want coverage. You should also know that no insurance company provides coverage for “intentional acts.” This applies to your son and the auto driver. Good Luck and remember with teenage sons – just hope for no-life altering events. This should be a good lesson to all and for five hundred dollars – regardless of who pays – it is a good deal. It could have been a lot worse.

 

Divorce and College

 

Q. I have been divorced several years and there were no stipulations in our decree as to who would pay for our child’s college tuition. My child is now college age and I’m sure my ex will ask about it. Recently, my ex had me sign an order from the court stating that if I paid my child’s medical bills, she would not seek modification of support. Does this modification protect me from having to pay for college for my child or is this a separate issue? I have no problem paying my fair share, but I know college is expensive nowadays. Can my ex take me back to court to have this issue modified?

 

A. What state court has your case? The answer to your question may depend on which state has it, as the law will vary from state to state. Did you have a lawyer during the divorce? That lawyer would be the best person to advise you in interpreting the terms of the decree and how state laws affect your obligations. Also, the terms of the modifications you agreed to may have some bearing on this question, but normally, tuition and medical bills are separate issues. Finally, your divorce court will have uniform support guidelines so you can see if you are doing what others are paying.

Where there’s will, there’s a claim

ed. note - ABATE legal has received many questions as the following:

Q: I have been an ABATE member for several years. My significant other passed away recently. While he was still able to communicate, he made a change in his will that included me. His intentions were to leave me certain personal property. He hand-wrote this change in front of witnesses, who all signed the document. Now, some of the family do not want to honor his wishes. But I am still interested in how some of the family can just say they don’t want to honor his wishes. Is this something that can be fought and won, or should I just accept the fact that I will never see the property he wanted me to have?

A: You will have to convince the probate judge that the document executed by your boyfriend was a properly-drafted and executed codicil [change] to his will. To do that, you will need to hire a local probate attorney to make a proper challenge to the will in the probate court. Time is of the essence in filing this claim. Generally speaking, an individual can make changes to a will through a properly drafted codicil, but the proper form and language must be used to demonstrate that the deceased knew what he was doing and what his intent was.

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. © 2009, A.B.A.T.E. Legal Services

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