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Ask Our Lawyer - December 2005

Dale - The Great Walinda [a happy motorcycle story].

His real name is Dale Ervin, but the rest of us call him “the Great Walinda”. Here is his story and I am sticking to it. It was one of those days–a Saturday, an El Nino winter day, 55 degrees, and no particular place to go.

Running through Du Page County, South on Belmont between Ogden and 55th Street, Dale a/k/a “the Great Wallenda” was confronted with a 16 year-old newly minted “driver from Hell,” driving one of those cars–the kind you only identify by color. Dale was running 35 mile per hour, the speed limit, but it didn’t matter. Without warning, this kid pulled out in front of Dale, who really had no “particular place to go”, but right into the side of the whatever car, with his mint condition Softtail.

We estimate Dale hit the side of the driver door at about 25 to 30 miles per hour. At this point, the car is winning [don’t they always?] But it’s not over yet.

For once in my life, a motorcyclist wins in the collision of vehicles. What happens next is wonderful. Picture this: Dale (the Great Wallenda) is catapulted high in the air, while wearing his trademark “SKULL” helmet. He turns at least a complete flip, [Dale is not sure because he admits his eyes were closed] does a ½ gainer, comes out of the sky, and lands on his feet – get this – staring at the driver, who was frantically hand locking all doors in his red car.

Wisely, he refused to leave his car until several police squads arrived and intervened – who can blame him? He just witnessed the Skull sail over his car and land on his feet. I am sure he was heard to say that “I will never EVER do that again.” As for Dale, the gymnastic gods were with him.

As I move to the autumn of my life, my fantasies are changing, and Dale’s Great Wallenda experience is now one of my top dreams. We bikers had a good day, and Dale had the best day of all.

EPA Regulations Will Affect Your Rights!

Q: We heard something about a new EPA law (or something federal) that is going in effect in 2006, stating that a person can have one custom bike in their lifetime? That can't possibly be true, can it? So much for freedom, huh?

A: Sounds ridiculous, right? When I first heard this, I thought it was impossible to believe. I thought a rumor was floating around. Good thing I did some research. It turns out that new EPA regulations go into effect in 2006 that will dramatically effect the rights of owners and manufacturers of custom and kit motorcycles.

The Motorcycle Riders Foundation and state MROs have been working to make changes to the new Rule. Although most of the Rule deals with the emissions regulation for new bikes, emissions regulations will also affect motorcycles built by private individuals (kit bikes) and small manufacturers (custom bikes). Courtesy of the MRF, here are some of the effects of the new rule:

Starting in 2006, it will be legal for you to build your own custom motorcycle. In the new EPA rules this is called a “kit bike” and it will not have be to tested to verify that it conforms to the new emissions standards. There are, however, some very specific rules that will apply to your kit bike.

  • You are only allowed one emissions-exempt kit bike in your lifetime.
  • You may not sell your once-in-a-lifetime emissions-exempt kit bike for five years after its final assembly.
  • You may have someone else assemble your kit bike for you as long as you have purchased the components prior to the start of the assembly.
  • You cannot build your kit bike by modifying a factory-built motorcycle that was certified to meet EPA emissions standards. You must start with a new engine and frame.
  • Under the existing rule, all kit bikes are supposed to be tested and certified to meet the 1979 EPA rules.
  • An EPA-exempt kit bike can be used on the road without any travel restrictions.

The new EPA rule allows for the construction of ONE kit bike per person and it refers to your lifetime. You are allowed one EPA-exempt kit motorcycle that has no restrictions on how and where it may be used under this rule. The exemption is for the motorcycle owner's lifetime. When and if a new rule comes out that addresses engine certification, the lifetime exemption may be rewritten.

You do not have to assemble your kit bike yourself. You can pay someone else to assemble your kit bike after you purchase the “kit” or components that will be assembled into the final motorcycle, or you can build kit bikes for others, if they purchase the parts before you build it. The lifetime exemption will apply to the person who purchased the parts used to build the bike.

Shockingly, the way this new EPA rule is written now, you would not be able to replace your stolen or destroyed EPA-exempt motorcycle. You are only allowed one EPA-exempt kit bike in your lifetime under the new EPA rule. You are not allowed to sell your EPA-exempt kit bike for five years after the date of final assembly, even in case of death, bankruptcy, or divorce. After five years, your EPA-exempt motorcycle can be sold. If you do sell your EPA-exempt kit bike, you will not be allowed to own another exempt kit motorcycle.

There is one other type of exemption that will apply to riders, and that is the “custom motorcycle.” This is like the kit bike in that it does not have to meet the EPA emissions standards, but different in several other important ways. A builder may build 24 or fewer per year and sell them commercially by notifying the EPA and including a tag somewhere on the motorcycle stating:

This Motorcycle is exempty from EPA emissions requirements. Its use on public roads is limited pursuant to 40 CFR 86.407-78(c)

The 25th and all subsequent motorcycles built that year by that builder must all comply with the new emissions standards. An individual can own as many of the CM exemption motorcycles as he/she can afford. However, there are severe restrictions on how and where they can be used on the roads. Use on public roads is limited to display purposes, such as traveling to and from motorcycle shows. This could be a show in your hometown or a show on the other side of the country. The distance does not matter, only the reason for the travel.

For more information and any changes to the rule, go to the MRF site at http://www.mrf.org/pp-epa-for-the-layman.php

Revenge of the Guard Rail

Q: I was in a car accident in last year, when road conditions were icy and snowy, and I slid into a guard rail. I was OK, but I banged the guard rail pretty hard. As I was standing there, waiting for the police, two other people slid off the road and hit the rail in the same spot. A few days ago, I received a bill from the DOT for the cost of damages for replacing the guard rail. Can I still be held liable for the damages?

A: Unfortunately for you, yes, although you may have an “act of God” defense when the conditions are extreme. Most states will bill motorists for damage to guardrails, based on general negligence law. For the vast majority of motorists, the bill should be sent to your insurance company, and they will take care of it as part of the overall claim. If you don’t have insurance, or don’t want to make a claim, then you will be responsible for the bill. Kind of adds insult to injury, doesn’t it?

The test for damages to personal property in Illinois, Indiana and Ohio, is the value of the property [guard rail before you hit it] less the value of the guard rail after you hit it. Let’s say the guard fail was worth $500.00 before you your crash and $200.00 after your crash.

This hypothetical assumes the guard rail had a salvage value of $200.00 after your collision. The difference between those figures, $300.00, is the measure of damages you caused to that particular personal property, plus the cost of removal and installation. The fact that other motorists hit the guard rail then worth only $200.00 makes no difference. They hit a guard rail worth $200.00 and it was worth $200.00 after they hit it.

RoadHazard Results!

As many of you know, ABATE Legal Services has created and runs the RoadHazard program through the RoadHazard.org website. We want to hear about dangerous road conditions from the riders out there. Once we get notice of them, we send notices to the responsible government agencies so that they can get those roads fixed.

We have gotten very good feedback from the government agencies, and have heard from them that they appreciate the efforts we make to help them keep the roads safe. A frequent correspondent is Wally Kos, the Superintendent of Highways for Cook County, Illinois. We also hear from Thomas Sharp, the Commissioner of the Indiana Department of Transportation and several District Directors in Ohio. Keep those notices coming, and we’ll keep the government boys on their toes!


Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services

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