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Ask Our Lawyer - September 2012



Q:  "What's the legality or proper use of tar strips used to seal cracks in asphalt?  I'm curious because it seems that once it hits about 85 or 90 degrees, those strips become slick as ice and I've seen roads where little asphalt is left bare while the rest of the road is covered in those strips. I almost lost my bike on a corner with such."  Submitted by Ed Dixon- ABATE Member

A. I remember it just like yesterday. It was hotter than hell as I turned onto U.S. 40 on my way to Ohio. New crack sealer everywhere. A state trooper was stopped in the opposite lane I was turning into, and I was heading right at him in my turn. Then it happened. I hit the gooey black stuff as I turned and  going down hard. I remember putting my steel toed boots down and as I did that my foot plate hit the steel toe so hard that it bounced my bike upright. The image of the wide eyes of the cop are still with me and I felt like Evel Knievel. I had just dodged a mess that would have put me underneath a state trooper's car because of crack sealer.

And now for an answer to Ed’s question.

Imre Szauter of the AMA is doing a yeoman's job in steering reason and good engineering in the right direction. I have included his letter to the New York State Department of Transportation and its response. Clearly the new specs for crack sealer are 1-3 millimeters deep and only 2 inches wide.

Mr. Szauter’s letter to the State of New York:  

“The American Motorcyclist Association is a 265,000-member-plus organization with an unparalleled history of pursuing, protecting and promoting the interest of the world’s largest and most dedicated group of motorcycle enthusiasts.

Founded in 1924, the AMA exists to further the interests of American motorcyclists, while serving the needs of its members.

Our association was contacted recently by a member living in New York State.  He indicated that “tar snakes”, areas of road surface repaired with crack filler, have once again become a severe problem in parts of New York.  He wrote that his wife was involved in a motorcycle crash during 2003 as a result of losing traction on a series of tar snakes in a curve.  Several of his friends have also reported traction problems this year.

In the past, investigations uncovered cases of misapplication or improper materials used on many state roads.  Previous reminders to road crew supervisors and contractors that application of these materials present a hazard when not used according to the specifications have been effective in reducing dangerous areas for motorcyclists.     

On August 1, 1995, New York Department of Transportation Assistant Commissioner & Chief Engineer, Michael J. Cuddy, P.I., wrote to our association in response to a letter from Sean Maher, AMA legislative affairs specialist, on this topic.  I have enclosed a copy of Mr. Cuddy’s letter for your reference.  
I seek your assistance to once again bring this problem to the attention of all New York Department of Transportation Regional Directors.  Stressing the importance of applying the correct materials per established engineering practices will reduce the danger to residents and visitors motorcycling in New York.

Thank you for your consideration and attention to this matter.  If you have any questions or concerns, I would be happy to address them.”

New York Department of Transportation Response:  

“I am replying to your letter of June 22, 2004 to Commissioner Boardman.  Since Mike Cuddy sent you the letter of August 1, 1995, we have significantly changed our crack sealing specifications due to the problems that we experienced around that time.  Our new specifications only allow a two inch wide, one to three millimeters thick overband of material centered over a crack.  Additionally, no sealing of secondary or tertiary cracks is allowed.  All crack sealing done by state forces or by Department contractors have conformed to these specification since 1996.   

The New York State Department of Transportation does not have jurisdiction over all the roads in New York State.  Other jurisdictions include counties, towns, cities, villages, and certain authorities.  We have done the best we can to inform all jurisdictions of the possible ramifications of sealing cracks using the traditional overban method (two inches wide and a maximum of one to three millimeters thick at the center, tapering to the edges), (emphasis added) but there may be a few that either didn’t get the message or haven’t implemented the new sealing guidelines.  In June of 1996, the Department made two presentations on the new sealing guidelines to the Town Highway Superintendents of New York at their annual meeting in Ithaca, NY.  

Also in 1996, we conducted crack sealing training sessions for all Department employees involved in crack sealing, both project selection and project inspection.  Since that time, the proper procedure for crack sealing has been routinely included in training programs for newly appointed Department maintenance managers.  In 1999, 2001 and earlier this year, we conducted formal training sessions at locations around the state concerning several pavement preventive maintenance techniques.  Crack sealing was one of the treatments covered.  At all these training sessions, we emphasize the importance of adhering to the current crack sealing specifications as both a safety issue and a performance requirement.  A presentation on crack sealing will also be a given at the upcoming NYSDOT- Association of General Contractors Technical Conference to be held in Saratoga Springs, NY this December...”  

As you can see Imre has been our watch dog on this issue for a long time.  He needs our help.  So next month in this column, we will cover everything you ever wanted to know about cracks; to fill or not to fill; to seal or not to seal, so to speak.  

Remember- no more than 1-3 millimeters deep tapered to no more than 2 inches wide .  Anything beyond that is dangerous, so get out your measuring sticks, take cell phone photos --and report it to ROADHAZARD.ORG.  Our mantra is, “MORE THAN THAT CAN KILL A BIKER”.   


Governor Pat Quinn signed a law that gives motorcyclists relief from red lights that won't change. With the new law, a biker can go through a red light after 2 minutes of waiting. Now, aggressive Barney Fife’s in small town Illinois are out of business waiting on bikers to go through red lights that won't change. Looks like they will need to look elsewhere for revenues.

Q:  If an ABATE member donates the use of his/her property for an ABATE function and ABATE covers the property with a Certificate of Insurance, what if someone leaves the party intoxicated (adult or unknown minor) and is involved in an accident resulting in injury or death, is that homeowner covered?  ABATE of Indiana member
A.  The ABATE policy should provide coverage.  Additionally, the ABATE member usually would have coverage under his homeowner policy for personal social events.  The standard coverage for ABATE events will provide coverage for the ABATE member if that ABATE member is listed as an additional named insured under that policy.  So we need to make sure that the member is listed as an additional named insured.  The ABATE policy is needed because the homeowner insurance company may make an argument that the event is a business enterprise (not true) which is usually not covered, or the homeowner’s policy may specifically exclude such activities.  I recommend that the ABATE member confirm with his agent that there is coverage under his homeowner’s policy for the event.  There are specific provisions for charitable events and volunteer activities, so we should tread carefully and make sure there is coverage.  We know some insurance companies try to pull a fast one with fine print, and we do not want our members’ assets and homes exposed to liability.  

I got these in an email.  I thought I would share some of them with you.

  • Four wheels move the body. Two wheels move the soul.
  • Never be afraid to slow down.
  • A bike on the road is worth two in the shed.
  • Young riders pick a destination and go... Old riders pick a direction and go.
  • People are like Motorcycles: each is customized a bit differently.
  • Everyone crashes. Some get back on. Some don't. Some can't.
  • Don't argue with an 18-wheeler.
  • Never be ashamed to unlearn an old habit.
  • There are drunk riders. There are old riders. There are NO old, drunk riders.
  • Only a Biker knows why a dog sticks his head out of a car window.
  • There are two types of people in this world, people who ride  motorcycles and people who wish they could.

Ride Safe and Free,
Rod Taylor
ABATE Legal Services

ABATE, though many know it not, is one of the greatest rights organizations ever; but what it reaches for, by far exceeds what it has achieved, and what it has achieved is magnificent.

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. 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. Questions? Submit them to RodTaylor@ABATELEGAL.COM.  © 2012.