Phillips Law Firm | Motorcycle Law

Bike Law 101-MOTORCYCLE ACCIDENT RECONSTRUCTION

2007-10-15T15:29:00.000-05:00

BIKE LAW 101 –

“MOTORCYCLE ACCIDENT RECONSTRUCTION” – Say WHAT?

By, Steven M. Magas[1]

I received in today’s mail my latest copy of that epic tome, “Motorcycle Accident Reconstruction & Litigation,” by Ken Obenski, a well known forensic expert, and lawyer Paul Hill. As a contributing author to the sister volume, “Bicycle Accident Reconstruction & Litigation” I was curious to see what they had done with the subject relative to motorcycles. This 1130-page volume discusses the engineering and legal process of reconstructing motorcycle crashes in the sort of wonderful technical detail that only us trial lawyers [and former math majors] could love! Along the way, Obenski, an experienced rider himself, offers some wonderful insight into common rider errors which lead to self-induced crashes and better tactics for dealing with commonly encountered hazards.

STEERING

Steering is the thing that sets motorcycles apart from all other vehicles. As EVERY reader of this magazine knows, they clearly do not steer like cars, but they also do not steer like bicycles, mopeds, trikes, forklifts or even airplanes! Many of us understand, instinctively or by virtue of taking the MSF class, how to lean and guide our bike through the twisties, but could not begin to analyze the physics of it. Unfortunately, too often reconstructionists and lawyers find that motorcycle crashes are caused by the operator errors while steering in a crisis.

As I’ve stated in earlier columns, a shocking number of deaths and injuries from motorcycle crashes come in single vehicle accidents. In Ohio last year, 158 motorcyclist operators, and 19 passengers, were killed. More than half of those crashes were single vehicle crashes. The motorcycle operator was listed in the police report as being “In Error” in 53% of the crashes[2], leading to 115 deaths and 1,849 injuries.[3] Many [possibly as many as 40%, according to Obenski] of these deaths and injuries relate simply to improper steering.

I like the idea presented in one popular motorcycling magazine that while most riders steer a motorcycle fine in good times, the critical issue is how the “nut that connects the handlebar to the seat” will perform in a crisis![4] This glaring weakness is frequently exposed only after a crash occurs!

Unfortunately, many panicked riders turn INTO, and not AWAY from, a suddenly appearing obstacle. By turning the handlebars away from the obstacle to try to avoid it, the rider unknowingly counter-steers the bike TOWARDS it. The concept of counter-steering is covered in some depth in the MSF classes. Many of us don’t practice it or think about it after “graduation” until a sudden emergency arises!

Turning the bars left and leaning left to get away from a hazard to the right amounts to asserting two “contradictory inputs.” The bike must obey the laws of physics [which can never be skirted], and will always follow the prevailing input, regardless of the rider’s intent! The accident reconstructionist will often be told that the bike just “locked up” in such a crash. Yet, the bike checks out as normal. When the operator turned the bars “away” from the hazard and tried to lean that way also, “…the gyroscopic effect of the front wheel offers such high resistance to this effort that it will feel as if the steering is ‘locked’” and a crash will ensue.

Imagine now an inexperienced rider, on a big, fast bike, heading into a corner too fast. Realizing he can’t make the curve, he tries to brake and “steer” harder “into” the curve, but ends up counter-steering his way into a violent crash.

Lesson 1 – Know How To Steer & Panic Steer!

“LAYING IT DOWN”

How many times have you heard it? “I knew I was going to crash, so I just laid it down?” Well, accident expert Obenski says “Laying a bike down makes no sense in 99.99% of all emergency situations.” Why? The main reason is that once you lay it down you’ve played all your cards – you have absolutely no other options except to accept your fate. Obenski describes it like this: “The bike becomes a ballistic object that will slide in a straight line with a drag factor of about 0.5 and, with rare exceptions, cannot recover its normal riding position until it stops.” If you keep the bike UP, you have options, maneuverability and alternative strategies which almost always make more sense. Even standing on the pegs and trying to JUMP OVER a crash may be preferred over sliding into it!

PERCEPTION/REACTION

Accident reconstructionists and forensic engineers frequently measure and discuss “perception/reaction” times. This relates to idea that there is a time lag between the brain’s perception that life has gone from “good” to “not good” and a human being’s reaction to that realization. 1.5 seconds is a common “perception/reaction time” used by experts in analyzing daylight accidents. Thus, it takes a motorcyclist about a second and a half to “perceive” the danger of a guy turning a pick-up truck into her lane, and to “react” by taking some evasive maneuver. This time becomes critical when analyzing whether the rider could have avoided the crash.

At 60 mph, the motorcyclist travels 132 feet, almost half a football field, in that second and a half![5] If the vehicle is only 90 feet away when it turns left in front of your bike, it was probably physically impossible for you to “perceive” the danger and “react” before hitting it at 60 mph! Perception/reaction times are unique to each individual and change with age, experience, stress, weather, visibility, intoxication level and more!

Another common problem with inexperienced riders [and some with much experience] is that they are simply not sure what to do in a sudden emergency. Again, this is discussed at some length in the MSF classes. However, in reconstructing crashes we know that riders sometimes choose evasive action that “seems” good, but may simply be wrong, as in our counter-steering example above. Even worse, as Obenski eloquently states, “…sometimes riding a motorcycle is like combat in that the one thing you can be sure will be wrong is indecision!” In one study, a full ONE-THIRD of riders did NOTHING in a panic situation – they didn’t even apply the brakes![6] You must take action, the right action, to either avoid a crash, or minimize its impact.

Lesson 2 – Learn What To Do When Life Is Not Good and PRACTICE Before Life Changes!

BRAKES & WEATHER

Today’s motorcycles have incredibly powerful front brakes. That point is drilled into new recruits by the MSF drill sergeants. Although it’s a lousy idea, the front brake CAN provide 100% of the stopping power, and get the back of the bike off the ground! It’s better, of course, to split the braking between front [70% or so] and back [30% or so]. This is completely opposite the bicycling mantra of maximizing the rear brake in order to avoid being thrown head over handlebars. Perhaps this is why many new riders tend to overuse the rear brake. Faulty braking technique is found to be a factor in many motorcycle crashes.

Locking up the brakes is never a good idea since locked tires have “no directional stability.” Yet, it is an easy thing to do on a motorcycle, particularly the rear brakes. You should learn, BEFORE a panic situation, how much force you can exert on that rear brake pedal before they lock up. Once locked, the rear will try to pass the front! While perhaps mildly disconcerting in a car, this is frequently an unrecoverable event on a bike and can lead to catastrophic results!

As you might expect, bike brake performance is “highly rider-dependent.” Operating a motorcycle requires far more technical skill than operating a car but many of us never “practice” – we just ride! Going over those “parking lot” drills from your MSF class from time to time is a GREAT idea!

Lesson 3: Practice, Practice, Practice…

FINALLY

I commute virtually year round. As I rode home into and out of a series of high intensity storms last night, I tried to keep Obenski’s words in mind. “As long as acceleration in any axis is kept below the friction coefficient a motorcycle can be driven even on wet ice!” In other words, slow down, adjust your thinking, and watch out for those areas of the roadway where the “friction coefficient” may be lessened by rain– areas like intersections, where traffic slows, or the center of the lane, where oil drips. Rain, after a dry spell [like last night’s here in Cincinnati], creates particularly treacherous conditions as the water mixes with the oils and other stuff on top of the pavement to create a slick surface for cars, trucks, busses AND bikes!

This is just the beginning of an extensive forensic analysis of motorcycle accidents I will undertake in these articles. As one who routinely represents injured motorcyclists, it seems to me that cars, trucks and busses are forever interrupting the right of way of motorcyclists! Hopefully, this will never happen to you, but, if it does, try to remember one more bit of scientific wisdom from engineer Obenski – “biology generally makes a softer landing point than masonry…”

GOOD LUCK AND GOOD RIDING!

[1] Steve Magas, The Bike Lawyer, is an avid commuting and touring motorcyclist and an active Ohio trial lawyer who handles motorcycle cases in all of Ohio’s 88 counties! He can be reached for a FREE Consultation at 513-484-BIKE, or at BikeLawyer@aol.com.

[2] Having dealt with MANY police reports that inaccurately parcel out “fault,” I take this number with a grain of salt!

[3] Fortunately, out of almost 600,000 “units” involved in vehicle crashes in 2005, there were only 4,413 motorcycles – just 0.7%.

[4] See, “Countersteering: Motorcyclists Who Zig” at www.motorcyclecruiser.com.

[5] 60 mph = 88 feet per second.

[6] http://www.webbikeworld.com/Motorcycle-Safety/braking-tips.htm

MOTORCYCLE NEWS - SUMMER 2007

2007-08-16T16:23:00.000-05:00

Here's some motorcycle news from http://www.webbikeworld.com/Motorcycle-news/blog/

The Accident Statistics released for 2006 are sad, but predictable. Motorcycle deaths went UP 5% in 2006, from 4576 to 4810, and injuries increased 1%, from 87,000 to 88,000. This is still a far cry from the 30,500 killed and 2.3 MILLION injured in passenger cars in 2006, but the injury/death numbers for cars are going down while the injury/death numbers for motorcycles continue to climb!

US MOTORCYCLE NEWS - SUMMER 2007

U.S. Motorcycle Accidents Increase for 9th Straight Year; Now Higher Than Pedestrian Deaths

July 23, 2007 - The U.S. National Highway Traffic Safety Administration (NHTSA) released their annual Traffic Safety Assessment for 2006 (.pdf file) today, and motorcycle deaths have unfortunately increased for the ninth straight year. In fact, the 4,810 motorcycle deaths in 2006 now exceed pedestrian deaths at 4,784. Motorcycle fatalities in 2006 increased by 234 (5.1%) over 2005 (4,576). 88,000 motorcyclists were injured in accidents in 2006, an increase of 1,000 from 2005.

Meanwhile, the New York Times reported on an Organization for Economic Cooperation and Development and the International Transport Forum study on July 24 that the U.S. now ranks 42 out of 48 countries in the number of road fatalities per capita (all vehicles, not just motorcycles). Australia, Britain, France, Germany and Japan all have made significant improvements but the U.S. has not.

The U.S. was No. 1 in 1970 in fatalities per distance driven but now ranks 11th, with some countries reporting rates that are 25 percent lower. Here's a graphic comparing the accident rates over time.

U.S. Motorcycle Sales Report for January - June 2007

July 24, 2007 - U.S. Motorcycle sales are mixed over the first 6 months of 2007. Dual Sport sales continue to improve, with a sales gain of +2.8% from 2006 for a total of 21,322 in the first two quarters of 2007.

Meanwhile, sales of off-road motorcycles are continuing to suffer. There were 19,340 fewer sold so far in 2007 over 2006, which is a 15% decrease. So far only 109,893 off-road bikes have been sold this year.

Street bike sales are also off slightly, down 5.0% from the same time period in 2006, with 389,765 units sold, compared to 410,421 sold during the first 6 months of 2006. Scooter sales were relatively steady, down 0.6% (181 units) at 29,719 versus 29,900 for the same time period in 2006.

First Quarter of 2006 U.S. Motorcycle Sales and Statistics

April 26, 2007 - First quarter 2007 motorcycle sales are off from the first quarter of 2006, with street bike sales down 3,259, a drop of 2.6%; off-road bike sales dropped 17.8%; scooter sales down 4.6% while dual-purpose bikes are about stable with a 1% sales decrease.

Total current first quarter 2007 sales for off-road, dual-purpose, street bikes and scooters are 195,092, compared to 209,860 for the first quarter of 2006. This is a drop of 14,768, or 7.0% overall.

Summary of 2006 U.S. Motorcycle Sales and Statistics

March 28, 2007 - The final numbers for 2006 are in and they show a modest increase in overall motorcycle sales, which totaled 1,022,332 (Including scooter, street, dual sport and off-road types). This compares to 1,009,588 in 2005 for an increase of 1.3%.

Here's the breakdown:

	2005	2006	% Change
Scooter	56,899	54,268	- 4.6%
Street	646,097	680,679	+ 5.4%
Dual Sport	29,610	35,245	+ 19.0%
Off-Road	276,982	252,140	- 9.0%
Total	1,009,588	1,022,332	+ 1.3%

The big surprise is the drop in scooter sales, which have been predicted to rise, based on the increased fuel prices in the U.S. The dual sport category is also interesting, with another big increase in 2006. If ATV sales (747,581, a decrease of 4.2% from 2005) are factored in, total sales dropped for the first time in 14 years of consecutive growth (18 brands included).

However, the growth in street bike sales does continue the 14 year trend. Other statistics reported by the Motorcycle Industry Council include an estimate of 8,802,000 motorcycles in use in the U.S. in 2003, the latest year for which figures are available. About 76% of these motorcycles are in the over 749cc category and 16% are 450 to 749cc's.

The largest number of motorcycles are in California, Texas, Florida, Pennsylvania and New York, with 33% of the total motorcycles in use in 2003. You may think that the West Coast has the largest number of motorcycles, with 2,187,100, but the South beats this with 2,645,100 (although this is a somewhat meaningless number due to the arbitrary numbers of states in each region).

In 2004, approximately 5.7 million motorcycles were registered for use on public roads in the U.S.A., which equals about 2.4% of all vehicle registrations. Estimates of market share for 2005, the latest year for which numbers are available, show Honda in the lead with 24% of the market, followed by Harley-Davidson and Buell with 22.6%, Yamaha at 15.9%, Suzuki at 11.8%, Kawasaki at 9.1%, KTM at 1.7%, BMW with 1.2% and "Other" at 13.7%. Why Triumph isn't broken out separately remains a mystery.

In 2005, the motorcycle industry generated an estimated $25.5 billion in consumer sales, services, state taxes and licensing, including $9.8 billion in motorcycle retail sales. Also in 2005, there were 12,013 retail outlets selling motorcycles and related products, with 148,675 employees earning an annual estimated payroll of $4.0 billion.

There's been a dramatic change in the age of motorcycle owners since 1985. For example, owners under 18 years old total only 3.7% of the percent of total ownership in 2003, compared to 14.9% in 1985, while the owners age 40 and over total 53%, compared to 21.3% in 1985.

Motorcycle injuries have been on a steady increase since 1996, from about 55,000 in 1996 to approximately 85,000 in 2005. This comes as MSF trained riders increased from about 125,000 in 1996 to about 325,000 in 2005. Fatalities have also risen dramatically, more than doubling from about 2,100 in 1996 to about 4,550 in 2005.

2006 BMW Motorcycle Sales

January 13, 2007 - BMW reports that worldwide BMW motorcycle sales for December were up 36.8 percent over the same period the previous year, while annual sales topped 100,000 units. BMW Motorrad USA, also posted increases for December as well as annual sales.

The strong performance was claimed to be due to the introduction of new models as well as the continued performance of existing models. At the head of the list was the top-selling model – the R 1200 RT – which was named “Best Touring Bike” in 2006 for the second year in a row by editors of Motorcyclist Magazine.

BMW’s R 1200 GS model – named “Best Adventure Bike” last year by Motorcyclist – accounted for the marque’s second highest volume. The F 650 GS was BMW’s third best-selling bike.

BMW Motorrad USA will introduce several new motorcycles for 2007 – the G 650 series, the F 800 series, and the K 1200 R Sport models – all of which are expected to contribute to another strong year.

100,000 motorcycles were produced and sold for the first time, which now means that over 2 million motorcycles have been sold in the company's entire history. Exactly 100,064 BMW motorcycles were sold worldwide - the highest number ever supplied by the company to customers in a single year. Compared to the previous year (97,474 units) this means a sales increase of 2.7 per cent.

And the company can boast yet another proud statistic for 2006: in December the number of all BMW motorcycles produced since 1923 reached the two million mark. By the end of the year a total of 2,061,977 motorcycles had been produced, 1,616,016 having come off the production lines of the motorcycle plant in Berlin-Spandau since 1969.

In keeping with the company’s roots, the 100,000th motorcycle was a flat twin “Boxer”, an unfaired R 1200 R in Night Black non-metallic fitted with Integral ABS.

The foundation for increased production was laid by investments made in past years. Some 117 million euros was spent on developing motorcycle production in the Berlin plant between 2001 and 2003. Today it is regarded as one of the most state-of-the-art motorcycle plants in the world.

The markets in Western Europe accounted for the lion’s share of the impressive sales results. In Germany, a total of 23,617 units had been supplied as of December, making BMW Motorrad the market leader in its home territory.

The second strongest market for the company was Italy with 13,651 units, followed by the US (12,825 units) and Spain (10,002 units).

The R 1200 GS – along with its sibling model Adventure - achieved phenomenal sales success with 31,138 units. Not only is it the market leader by far among the large-volume enduro motorcycles, it is probably one of the best-selling motorcycle models worldwide in the category over 500 cc.

Ranking in second place in terms of popularity of BMW motorcycles is the touring bike R1200 RT with 13,384 units. The single-cylinder model F 650 GS and the model variation Dakar was sold 12,511 times.

Within a decade, BMW Motorrad has become the biggest and most successful manufacturer of large-volume motorcycles in Europe. But for Dr. Herbert Diess, the managing director of BMW Motorrad, volume increase is not the ultimate objective: “Our company strategy is long-term and oriented towards the permanent profitability of all products; it is not simply geared towards volume. Rankings in registration statistics are not the main focus of our interest. We invest carefully in innovations and technologies for new models, consolidating and extending our segments and market positions. This secures a strong position within the market for us and our dealers.”

Looking ahead to 2007, BMW Motorrad starts out with five new models. The new single-cylinder series with the models G 650 Xchallenge, Xcountry and Xmoto, and the K 1200 R Sport will all be available from dealerships in Germany from March 10, 2007 and the HP2 Megamoto follows in late spring.

2006 Motorcycle Sales

November 2, 2006 - Motorcycle sales in New Zealand are reported to have been on the rise, up about 25% from 2005 to 2006, from 9,000 bikes in 2005 to 11,000 so far in 2006. The cause is thought to be high fuel prices.

October 21, 2006 - It's interesting to note that on/off road motorcycle sales continue to rise, with a 23% year-to-date increase in the first three quarters of 2006 as compared to 2005. This may be due to sales of motorcycles like the BMW R1200GS, Triumph Tiger and others, although the definition of "dual use" is not clear to us.

Meanwhile, street bike sales are running 6.6% ahead of last year, while scooter sales are, surprisingly, down 1.5% for the year.

BIKE LAW 101 - The BLS for the Motorcyclist - Part One - Insurance

2007-08-15T16:50:00.000-05:00

BIKE LAW 101

THE B.L.S. [1] FOR THE MOTORCYCLIST - Part One - INSURANCE

By Steven M. Magas, The Bike Lawyer[2]

Can’t you just picture it – maps laid out, clothes folded ready to be loaded into waiting bike luggage, bike all tuned up, the smell of heavy leather gear [or freshly laundered Gore-Tex] floating about the room. The last thing on the motorcyclist’s mind as she/he goes through the Pre-Trip Checklist is The BLS1. Unfortunately, failure to consider The BLS can end up costing the motorcyclist time, money and the safety and peace of mind of his family should something go awry on the trip! The BLS includes: insurance issues, estate planning and traffic/motorcycling laws. We’ll take a look at all three, starting with the always exciting topic of INSURANCE today!

INSURANCE ISSUES for the MOTORCYCLIST

Insurance? You don’t need to worry about no stinkin’ insurance, right? You’re driving a MOTORCYCLE … what can POSSIBLY happen? [For this part of the article, let’s assume you are staying inside the United States – things REALLY get crazy in the insurance world when you cross sovereign borders!]

Health Insurance

First, and foremost, before you leave the house make sure you are carrying all of your health insurance information. Keep it close at hand - better yet, pack your insurance card, or a copy, in a small [2”x3”] baggie with your ID, emergency contact information and list of medical allergies stored visibly on your person – or in your helmet! If you are hurt on the side of the road, unable to communicate and need emergency care or serious medical intervention you do NOT want healthcare professionals wondering who you are, who to contact and whether or not you’ve got health insurance! “Road ID” is a company that makes an excellent wristband product holding a plate with your emergency information or whatever you tell them to type on the plate! [www.roadid.com].

WARNING: Some health insurers are experimenting with limiting the benefits they provide if an insured is injured while riding a motorcycle or engaging in certain other “hazardous sports.” As you might expect, groups, such as the American Motorcyclist Association, are up in arms and preparing to do battle. However, under health insurance policies covering motorcyclists right now a motorcyclist can hit by a DRUNK driver and find out they have NO health insurance coverage! A bill is currently pending in Congress to stop this practice. Support H.R. 1076 in the House and S.B. 616 in the Senate! Follow these bills on the MRF [mrf.org] or AMA [ama-cycle.org] websites.

Disability Insurance

In 2005, there were 179 riders [77 intoxicated riders] killed on Ohio’s roadways – a 35% increase. However, more telling, there were some 3,400 riders injured in a total of 4,500 motorcycle crashes. Statistically, you are MUCH more likely to become disabled, short term or long term, from a crash than you are to be killed. I’m certainly not here to sell you insurance, but if you earn a decent wage, you should protect it. Take advantage of disability policies available through work or, perhaps, a professional group that you belong to. Make sure there is no “hazardous sports” clause, however!

Motorcycle Insurance

Guess what – we are POPULAR folks – at least with insurance companies. More and more major carriers are fine tuning their motorcycle insurance offerings to be competitive. Why? Because they are realizing that, contrary to some folklore, motorcycle owners and operators are not a bunch of scofflaw outlaws – they tend to be dedicated vehicle owners, taking pride in their equipment and enjoying their rides. Also, and more pertinent to insurers, aging baby boomers, present company included, have sparked a motorcycle boom – buying bigger, hotter, faster, cooler and more expensive bikes than ever before. These machines - whether they do 175 out of the crate or cost $35,000 in custom design and components – and their riders all have one thing in common – they need insurance!

Motorcycle Insurance – Medical Payments Coverage

If you are injured in a crash on your motorcycle and can’t pay your medical bills, you may find some financial assistance buried within your motorcycle insurance policy!

Most motor vehicle insurance policies provide, or offer, “medical payments” coverage. This coverage pays YOUR medical bills if you are in a crash with another car. Historically, if you were hit by a car while riding your bike your “medical payments” coverage could be used to pay some of your medical bills even though the coverage is found in your automobile policy.

Check your policy and declarations page to make sure you have “medical payments” [ or “med pay”] coverage. If you were shopping for the lowest PRICE on insurance, some agents will remove some typical coverages in order to cut down the amount of the bill – “med pay” included. You will want this coverage – particularly if you no medical insurance, or a very poor policy.

Motorcycle Insurance – Uninsured/Underinsured Motorist Coverage

One scenario many motorcycle riders face is the cowardly motorist who runs you off the road, throws something at you or otherwise causes a crash in which the motorcyclist loses control or is injured, and then flees the scene. These “phantom motorist” cases are tough, but the law of many states, including Ohio, provides for a recovery under the “uninsured/underinsured motorist” [“UM/UIM”] provisions of your auto insurance policy.

I advise my clients to buy as much “UM/UIM” coverage as they can afford because, like “med pay” coverage, UM/UIM coverage pays YOU when you need it the most! So when does UM/UIM coverage come into play?

The “UM” or “uninsured motorist” part of the equation is pretty obvious. If you are in a crash caused by motorist who simply has no insurance, your “UM” coverage should pay your injury claim just as if it was the motorist’s coverage. The motorist may be driving intentionally without insurance. In some cases, however, the motorist may THINK he has insurance but failed to pay the premium and the policy lapsed. If the motorist improperly, or fraudulently, filled out his application when he applied for insurance, the carrier might yank the coverage once it figures this out – usually following a crash when a claim is made. This formerly insured motorist now becomes “uninsured.” You can use your “UM” coverage to pay your wage loss, medical bills and pain and suffering just as if the other guy did have coverage.

The application of “underinsured motorist” coverage may not be so obvious. Let’s say the motorist who runs you over actually has pretty good coverage - $100,000.00 policy limits. However, because of the severity of your injuries, wage loss, medical bills, pain, permanent injuries and the like, your claim is worth a lot more than that – say, $500,000.00. The motorist, despite his excellent coverage, is considered to be “underinsured motorist” under your policy and your policy’s “UIM” coverage may be used to pay your claim.

Crashes in which UM/UIM coverage becomes involved have generated an incredible amount of litigation. The insurers are constantly pushing to limit the circumstances where such coverages can be used, while lawyers representing injured riders and motorists are constantly pushing to maximize the recovery their clients can obtain. You would be wise to retain counsel in ANY situation in which UM/UIM coverage might come into play.

No Fault States

Kentucky is a “no fault” state – Ohio is not. The difference in the motorcycle insurance world is night and day. In essence, in a “no fault” state, YOUR insurance pays the first part of YOUR medical bills regardless of who was at fault. In Kentucky, it’s the first $10,000.00! The purpose of “no fault” is to reduce the amount of lawsuits – the thought being that if an injured victim is getting his bills paid, he’ll be less likely to sue.

However, while every AUTO policy MUST have “no fault” in Kentucky, policies covering MOTORCYCLES do not! If you purchase insurance in Kentucky and do not have “no fault” on your motorcycle policy, you are essentially carrying a $10,000.00 deductible! This is a complex legal topic and, if you buy insurance in Kentucky, you should discuss it with your agent, or your lawyer, to make sure you understand what you are buying and the limitations of your policy.

Are you carrying an Umbrella?

Do you carry any type of excess or umbrella insurance? These types of policies are designed to go over the top of all other policies and only come into play in extraordinary occurrences in which all other available insurance is used up and you still have losses. An umbrella policy is usually written with large policy limits - $500,000.00 or more. You are required to carry certain minimum policy limits for underlying coverage. I advise ALL of my motorcycling clients to consider an umbrella policy, particularly if you own a home and have significant assets. They are typically very inexpensive and, in that once in a lifetime situation, can save your financial life! Consult your insurance professional for details.

Real Life Insurance Example

So here’s a real-life example of insurance coverage in action. My client, a physician who rides all the time, suffered a dangerous neck fracture when a motorist backed out of a driveway directly in front of him. He needed surgery to fuse his neck at two levels. The motorist, unfortunately, carried Ohio’s pitifully low state minimum auto coverage - $12,500.00. The client’s medical bills were in excess of $80,000.00. His wage loss was in excess of $40,000.00 and growing.

Fortunately, the rider purchased excellent auto coverage which had $300,000.00 “underinsured motorist” policy limits and $10,000.00 in “medical payments” coverage. Even though he also carried excellent medical insurance, the “co-pays” for his surgery and treatment were extensive. He used the $10,000 from his medical payments coverage just to cover these “co-pays.” You can see how a bad wreck can you put in a HUGE financial hole very quickly!

In addition, my client utilized a disability benefit through his office that kept him afloat financially while he was off work completely for more than two months. Finally, he had wisely purchased an umbrella policy with $1.0 million limits. Since his claim has a value that exceeds his $300,000.00 “UM/UIM” limits, the umbrella policy will come into play to pay his claim. While he, like most of us, hoped he would never need it, the “once-in-a-lifetime event” happened to him! Fortunately, he paid attention to The BLS before he took a ride!

So there you go, The BLS about Motorcycles & Insurance in a [rather large] nutshell! Next month, we tackle another exciting topic – Estate Planning for the Motorcyclist!

[1] Boring Legal Shiii …er…. Stuff!

[2] Steve. Magas is an avid Ohio motorcyclist and trial lawyer whose practice focuses on protecting the rights of riders. Steve has handled more than 100 “bike cases” ranging from traffic tickets and crashes involving minor injuries to crashes leading to brain injury or death. Steve writes regularly on legal issues relating to motorcycling. He is a year round rider, commuting and touring on his BMW f650gs. Steve offers a FREE CONSULTATION on your legal questions – reach him at 513-484-BIKE or online at BikeLawyer@aol.com.

BIKE LAW 101 - The BLS for the Motorcyclist - Part Two - Estate Planning

2007-08-14T16:54:00.000-05:00

BIKE LAW 101

THE B.L.S. [1] FOR THE MOTORCYCLIST: Part TWO – ESTATE PLANNING

By Steven M. Magas, The Bike Lawyer[2]

Last month I ventured away from safety, accidents and riding the bike to consider the BLS – Boring Legal Stuff – related to insurance and motorcycling. This month the second [and last] BLS installment: Estate Planning.

Why does the motorcyclist need to worry about “Estate Planning?” What the heck IS “Estate Planning” anyway? Sounds rather vague and morbid! Why should a MOTORCYCLIST worry about Estate Planning for a few minutes instead of stalking her/his bike?

“Estate Planning” for most of us [us NON-millionaires, that is] consists of getting a will prepared, as well as possibly a trust and, even more important for the motorcyclist, a couple “Powers of Attorney.” For most people, their goals are to provide financially for their surviving spouse, protect their assets, insure that their children are physically and financially cared for, minimize cost, taxes and delay and insure that their plan for the distribution of their life’s work is done the way they want it. Other goals may include providing for children of a prior marriage, making sure that business interests are taken care of, providing liquidity to pay bills and taxes and avoiding family conflict and strife!

Here’s a little “12-Step” program for getting the BLS done in YOUR life!

Make a will.
Consider a trust.
Make health care directives.
Make a financial power of attorney.
Protect your children's property.
File beneficiary forms.
Consider life insurance.
Understand estate taxes.
Cover funeral expenses.
Make final arrangements.
Protect your business.
Store your documents.

YOUR WILL & TRUST

We all would like to live forever, or at least long into our “golden years.” It seems that many adults fear “making a will” more than death or dealing with a life insurance agent! The thought of talking about “end of life” issues scares many people and prevents them from getting their will done. However, the legal effect of NOT dealing with these issues should scare you even more!

Everybody Needs a Will

In a will, you state who you want to inherit your property and name a guardian to care for your young children should something happen to you and the other parent. If you have small children you should have a will – no question about it – you are committing “Parental Malpractice” if you don’t! Under Ohio law, if you have no will, then the Probate Court Judge determines who will take care of your children until they are 18 years old. Without a will advising the court about who you want to inherit your property, Ohio law tells you exactly who gets it. Without a will or trust in place, your young children take possession of your entire estate, including all life insurance proceeds and such, at the tender age of 18! Failure to have a will or trust prepared can cause your estate to incur taxes of expenses which could be avoided.

What is a Will?

A Will is a legal document in which you:

· Name the Guardians of your children, as well as alternative Guardians if your first choice is unavailable.

· Describe who you want to inherit your property.

· Name the “Executor” or “Executrix” of your estate – the person responsible for gathering up your assets, paying your debts, and seeing your estate through the Probate process such that your property passes to the appropriate people.

· Provide for passing assets to a Trust.

Not just any writing listing your wishes can be a legal will. Ohio law is very specific about how the will must be signed and witnessed. Failure to follow these rules exactly can cause your wishes to be ignored by the Court.

Trusts: Not Just For Millionaires

A Trust is also a legal document. However, trusts can be extremely diverse in what they do. Today, though, we’re going to limit our discussion to a very basic form of trust – one that holds your assets for your children and distributes when they are a little older – say 22 or 25 or 30! During the estate planning process we ask people to look at the life insurance they have purchased, or have available through work, their retirement holdings and all other assets, and determine how much money could be available to their children in the event of their death, or should both spouses die. Often, this ends up being a rather considerable sum of money – more than most people feel like dropping into the laps of their children at age 18!

This is where the Trust comes into play. In your will, you can leave the majority of your estate to a Trust or Trustee, should your spouse be unavailable. In the Trust, you designate when you want your children to have these funds and how you want the Trustee to handle those funds. This distribution can be written in just about any manner that makes sense to you. Want to encourage or pay for college? Your trust can provide for that. Want to give the children a specific sum each year until they reach 25 or 30? Your trust can provide for that. Want to give your Trustee discretion to distribute money to meet each child’s specific needs? Your trust can provide for that. In essence, you figure out what works for you and your lawyer can write a Trust to make it work!

POWERS OF ATTORNEY

What are POA’s?

A Power of Attorney [“POA”] is a legal document that gives someone ELSE the power to make decisions for you. POA’s are of CRITICAL importance to the motorcyclist. If you are in a crash and are unconscious or unable to make decisions, a POA gives another person the legal right to make those decisions. The “catch?” A POA must be signed by you BEFORE you are unconscious or incompetent and must contain particular language to be valid after you become incompetent. More importantly, if you do not have health care POA’s in place before you are hurt, your family could be in a “Terry Schiavo” situation, where no one has authority to make end-of-life decisions for you.

Financial POA

In Ohio, a “durable” power of attorney is one containing particular language set forth in the Ohio Revised Code such that the POA will continue in force in the event of the incompetency or death of the person signing the POA. “Incompetence” here means that the mental status of the person signing the POA has changed due to illness or medical condition, injury or otherwise, such that the person is incapable of handling his own affairs. For the motorcyclist this usually means an accident-caused head injury which renders the rider unconscious, comatose or in an altered state of consciousness.

In a financial POA, the person you choose will have the power to pay your bills or do anything else financially that YOU could do. A POA can be very broad – the power to everything you could do. Most people are more familiar with a very narrow and limited POA– the pink forms at the BMV which permit you to give somebody else the power to get your license plates or sell your car.

The financial POA must be signed when you are competent. If a motorcycle crash renders you unable to make financial decisions, it is too late to create a POA – your assets may be frozen, unavailable to your spouse or family, and your bills might go unpaid or your credit could be damaged.

The Schiavo Case & “Advanced Directives” in Estate Planning

The Terry Schiavo case was a real medical and legal wake-up call for many Americans. The case provided a public window into the Worst Case Scenario – a person who was unconscious, but not “terminal,” who had never prepared any written instructions advising health care providers as to how she wanted to be treated. Today, so-called “advanced directives,” such as a special POA for Health Care and a Living Will, can take care of those issues.

A “Durable Power of Attorney for Health Care” is a legal document that authorizes another person of your choosing to make health care decisions for you if you are unable to make informed decisions on your own.

A “Living Will” is a document that contains your written wishes and instructions for care at the end of life. You can state your preferences regarding aggressive life-prolonging treatment.

Ohio law now specifically provides for “Living Wills” and “Health Care Powers of Attorney”. In fact, a simple Google search reveals numerous websites on which forms for both, approved by the Ohio State Bar Association, The Ohio Hospice & Palliative Care Organization and others, can be found. While you can prepare these forms without counsel, you must read them extremely carefully, fill in the blanks appropriately and insure that the witness and notary requirements are followed exactly. Failure to do so can render the forms worthless at a time when you need them the most!

SUMMARY

For most people, these five documents: Will, Trust, POA, Living Will, Health Care POA – make up their “Estate Planning” package. In addition, I would strongly urge motorcyclists to use the Estate Planning process as a time to organize your papers and get them in one place, to consider a safe deposit box for important papers, to review and update their life, health and disability insurance and consider any estate tax issues in their situation. Further, this is a great time to discuss your Estate Planning decisions, particularly your end of life decisions, with others. Morbid, perhaps, but for the motorcycle rider, this could be one of your most important conversations!

GOOD LUCK AND GOOD RIDING!

Steve Magas - The Bike Lawyer!

[1] Boring Legal Shiii …er…. Stuff!

BIKE LAW 101 - Cold Case & Cold Weather Riding

2007-04-19T10:46:00.000-05:00

BIKE LAW 101- Cold Case and Cold Weather Riding by, Steven M. Magas, The Bike Lawyer, BikeLawyer@aol.com

Ahhh, the things we do for science. If there are typos in this article it is only because my fingertips are still not quite working properly. I just walked in the door of the office – it’s 9:05am on December 9, 2006. According to the weather icon on my computer, it’s currently 9o at the airport and I don’t even want to calculate the 85…er… 65 mph wind chill!

I ride a 2001 BMW F650gs. It’s not a big, fancy bike – more like a dirt bike on steroids. I try to commute virtually year round, but took the day off yesterday when cars were sliding into ditches! Today it is cold, clear & dry – I thought I would ride to work, test some gear, tell you about it, and then take a look at an interesting Ohio Supreme Court case involving a motorcycle, a dying tree and the obligation of tree owners [and county commissioners] to know their trees!

PART I – Cold Weather Riding
Some people tell me I’m crazy to ride the bike in the winter. Yet, these same folks will pay thousands of dollars to fly to Utah and ski all day long in the mountains! As long as you are prepared for the risks of riding – be it summer, winter, clear, dry, rainy or snowy – you can ride anytime!

Now the huge difference between skiing and riding is clearly the level of exertion. Cross country skiers generate tremendous heat in their exhausting treks. Motorcycle riders sitting on their respective keesters, do not.

Warm clothing for riding is a must, and today’s fabrics and technology make it easier [albeit pricier] to stay warmer longer on the bike – even if you don’t invest heavily in “electric” clothing. Bruno Valeri writes on Cold Weather riding from Montreal. I like his analogy that the body’s temperature is “…very similar to a bike’s electrical system [i.e., charge vs. discharge]” without an alternator. The body starts out, bundled up, at 98.6o or more. Exposure to the cold and wind, with no new heat source, will lead to your experiencing the cold – the only variable is the length of time it will take. Valeri writes “Just like the battery voltage continuously decreasing, our body will get progressively colder.” This is what happened to my fingers this morning!

When I rode to ride this morning I included the following:

• Poly pro/wool socks
• Under Armour© running tights
• Tight Nike© Pro T shirt
• Dressy sweater & dress pants
• Heavy wool cardigan
• Tight-fitting Mountain Hardwear© windproof jacket
• Aerostich Darien Light Goretex ©motorcycle jacket
• Oxtar Goretex © touring boots
• Bikers brand Goretex Windstopper glove liners
• First Gear © brand winter gloves with 40g Thinsulate
• Aerostich electric Grip Warmers on the bike
• Columbia© brand fleece gator
• T408 brand Men’s snowboarding pants

You should have absolutely NO skin exposed. This is critical to cold weather riding. Your comfort and safety demand that you are alert and able to see, move and think quickly. If you are cold, tense and worried about hypothermia and frost bite, then you are less likely to appreciate the dangers ahead and have the ability to take the appropriate action. The Goretex elements of my gear help to insure that the wind stays OUT and the heat stays IN. The “tight” fitting tights and first layer are also great for keeping the heat close by. I find most office temperatures permit the comfortable wearing of these items.

One concession I make to the weather is to ride with the face shield down on the helmet. With the small windshield on my bike, the frigid air hitting my face causes concern. Other than my fingertips, however, I arrived this morning with no complaints. My gear retained my body heat excellently during the ride with the exception of my fingertips. I bought some 99¢ glove warmers which I may try tomorrow. If worse comes to worse, or I want to ride longer distances, I am probably going to have to bite the bullet and invest in some electric clothing. I’m a shopper, always looking for bargains. Other than paying the big bucks for the Aerostich jacket, I obtained just about everything else on sale at TJ Maxx or other discount stores.

Today, though, I store the gear in the corner of my office, swap out the boots for a pair of slip-ons I keep handy, and I’m ready for another day of bike lawyering! [As I wrote this, I realized that I forgot to pull the plug on the grip-warmers, so next month’s article was almost entitled “How to start a bike with a dead battery…”]

Part II – The Bike, The Tree and the Landower
On July 10, 1982, Melvin and Mary Heckert were riding their motorcycle in rural Stark County, Ohio. As they rode along, a dead tree limb suddenly fell off an overhanging tree and into their path. They hit the limb and a nasty accident ensued, causing severe personal injuries to both, as well as significant property damage to their bike.

The Heckerts sued the owner of the tree and the county. The Heckerts claimed that the landowner was negligent for permitting the overhanging limb to fall onto the roadway. As to the county, the Heckerts argued that the commissioners breached their statutory and common law duty to maintain the highway in a proper condition for travel. Both the landowner and the county moved for “summary judgment,” meaning that they asked to court to toss the case out before trial since, even assuming the facts to be true, there was still no liability. The Heckerts submitted expert witness affidavits and fought the motion, but the trial court granted summary judgment and dismissed the case. The Heckerts appealed all the way to the Ohio Supreme Court and the case reached the Supreme Court in 1984. The decision provides an interesting historical glimpse into the battles that waged between the liberal and conservative elements on the court in the 1980’s.

The Supreme Court in 1984 was an interesting group. It was a politically charged era and, even though judges are not supposed to be “Democrat” or “Republican,” those “in the know” knew which judges were more likely to favor the injured folks and which were more likely to rule against them. The seven member “Celebreeze Court,” as it was known, took pride in its decisions in the 1980’s which took Ohio law out of the dark ages and expanded the rights of those injured by the negligence of others. Many of these were “4-3” decisions, with Justice Holmes writing passionately conservative dissents. Unfortunately for the Heckerts, Justice Holmes apparently convinced three of his bretheren to rule with him in this case.

The Heckerts provided the affidavit of a tree expert to support their case. This expert stated that the tree in question had “large and rotted limbs” which extended over the roadway and that several limbs had already fallen prior to the crash. In his opinion, “***this tree has been decaying and has been in a stressful state for many years prior to July 10, 2082***”

Justice Holmes noted that the horticulturalist based his opinion on an examination of the INTERIOR of the tree, not the exterior. As such, he reasoned, there was no reason for the landowner to have realized the danger presented by the dead branches and no liability could attach. The three dissenting judges argue that the expert “***clearly states that the deterioration of the tree was visible and apparent***” long before the Heckerts’ crash. This sort of picking apart of the facts is very characteristic of the arguments between the judges on the “Celebreeze” court.

With regard to the County, Ohio’s statutory law provides that "* * * The board shall be liable, in its official capacity, for damages received by reason of its negligence or carelessness in not keeping any such road * * * in proper repair * * *." The Supreme Court noted two principles in the case law which has developed under this statute:

1. Liabilty only attaches in matters concerning the deterioration or disassembly of county roads and bridges and

2. Liability will NOT be imposed when the obstructions or interferences are unrelated to the conditions of the roadway.

Thus, liability has been imposed on the county for bridge collapses, ruts in the berm of the roadway, holes in the road or berm and a trench in the roadway. No liability has been found relative to a rock ledge on which a bridge abutment rests or to injuries sustained when a motorist hit a parked truck. There is also no county liability for tree limbs obscuring a stop sign, a bridge that is narrower than the approaching roadway, or snow removal.

Here, Justice Holmes wrote that the county is not liable when a branch from a tree falls onto the roadway. Again, the dissenters argue that the county has the same obligation to scour its roads for evidence of dangerous conditions. Here, they argue, the evidence was patent and obvious – the overhanging tree was a hazard. Again, the dissenters were in the minority and the court held, in a 4-3 vote, that the county wins.

This case does set an interesting rule. A landowner CAN be liable to a motorcycle rider if he permits hazards which are apparent and ignored. The disagreement between the judges, more political than factual, provides a window into the bigger rifts between the justices favoring an expansion of remedies to injured victims and those favoring reigning in such liability.

GOOD LUCK & GOOD RIDING!

Numbers, Crashes & Accidents

2007-04-19T10:42:00.000-05:00

The “Hurt Study” is the most frequently cited reference point for motorcycle accidents. Harry Hurt published this epic tome in 1981 after closely examining almost every aspect of some 900 motorcycle crashes in the Los Angeles area as well as reviewing an additional 3600 traffic reports.

Hurt’s numerous findings can be found through an easy internet search for “Hurt Report” and the full report, several hundred pages, can be purchased from the federal government. A key finding was that 75% of crashes involving motorcycles involved one or more other vehicles. In two out of three of those crashes, the OTHER vehicle violated the motorcycle operator’s right of way and caused the crash. This means the non-motorcycle operator was at fault two-thirds of the time.

It is in these cases where law, medicine, insurance and insurance companies, lawyers and motorcycles often intersect.

If I took a phone call on a claim involving injuries caused by a 1981 motorcycle crash, the Hurt study suggests the odds are in favor of the motorcycle operator being without fault. Hurt tells me that weather, component failure and roadway defects are likely NOT involved as they each contribute to less than 1 or 2% of all crashes. Hurt also tells me that the motorcycle rider was likely close to home at the time of the crash and was likely involved in a short trip relating to shopping, errands and the like.

What if my injured motorcyclist/caller is from Ohio? How do the numbers shake out in Ohio? The 2004 Ohio CRASH FACTS, published by the Ohio Department of Transportation, show an interesting trend in motorcycle accidents which is being duplicated throughout the country. Crashes are increasing. In 2000, there were 3,520 motorcycle crashes noted. In 2004, ODOT noted 4,161 crashes. Motorcycle deaths and injuries have also increased. 120 riders died in 2000, and 133 died in 2004. There were 3,011 injuries in 2000 and 3,543 in 2004.

What else is the state of Ohio reporting about motorcycle crashes? Of the 4,161 crashes in 2004, ODOT reports that the motorcyclist was at fault for an incredible 54.4% of the injuries and death. Non-motorcycle operators were deemed “at fault” in only 32.6% of the crashes while pedestrians [0.2%], animals [5.5%] and “not determined/not stated” [7.3%] make up the rest. Now, we can argue all day over whether the determination of who was truly “at fault” was fairly and accurately assessed. Nonetheless, that number is out there and published and it only serves to tarnish the image of motorcycle operators.

Was Hurt wrong? Have things changed since 1981? Are motorcycle operators less careful today than they were in 1981? Well, in one regard riders are certainly more careful. In 1981 there were 4,963 crashes, compared to 4,161 in 2004. A long lens look at the numbers is revealing. Motorcycle crashes in Ohio peaked in 1980 with a total of 5,194 crashes. The numbers show a general downward trend through the 1980’s and 1990’s, with a low of 2,160 in 1997. Since 1997, the number of Ohio motorcycle crashes has increased dramatically each year.

Another troubling trend is the fact that the number of crashes “per 100,000 registered users” is also going up. If the increase in crashes could be blamed on the fact that more vehicles are out there, that might be understandable. In fact, in the 1980’s and 1990’s when the number of crashes was decreasing, this rate “per 100,000” actually went DOWN from a high of 91.22/100,000 bikes in 1980 to a low of 56.20/100,000 bikes in 1996. The fact that crashes are on the rise and number of crashes per 100,000 registered bikes is up means more and more riders are crashing, getting hurt and getting killed.

Hurt found that some 25% of all motorcycle accidents were single vehicle accidents – think of that – one out of four crashes did not involve another vehicle at all. This means the motorcycle operator lost control, for some reason, and crashed. The Ohio numbers are more staggering – Crash Facts indicates that 61 of the167 motorcyclists killed in 2004 died in single vehicle crashes.

So what “reasons” did Hurt find to be compelling? Well, his research revealed that two out of every three single vehicle crashes were caused by rider error! 2004 Crash Facts, as noted above, put that figure over 50%.

Some argue the failure of motorcycle riders to be appropriately trained is a key factor in this rise of motorcycle accidents, injuries and deaths. The MSF classes and other “driver’s ed” classes provide invaluable assistance to even the most experienced riders. As I watch my 16 year feel his way around the road in my little car, I am reminded of how many folks buy a big bike and THEN learn to ride. Is this a contributor to higher accident rates? Only time and more money and research will tell. However, another indicator of this factor may well be the fact that the average age of those injured or killed in motorcycle crashes is also climbing! Research in this area will be the basis of a future column here.

Another factor is the obvious fact that many of today’s riders, present company included, are starting [or resuming] their riding later in life – a time when they can afford to buy the big, fast cool bikes on the market today. Getting into dad’s Honda Accord at age 16 and driving around town is a LONG way away from a new motorcyclist hopping onto a BMW K1200S and realizing as he approaches a curve that a three digit speed number won’t cut it!

The NHSTA recently released their predicted figures for last year… their Headline? “Motorcycle Fatalities Are Projected To Increase for the EIGHTH Year in a

Row – More than a ONE HUNDRED PERCENT Increase Since 1997”

Let’s be careful out there!

GOOD LUCK & GOOD RIDING!