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Motorcycle law, as Mr. Henke will broadly define it here, is the body of law that defines the rights of motorcyclists arising out of the negligence of another motorist, the motorcyclist's rights against a public entity for defective road design or for failure to repair or clear a road hazard, the rights of motorcyclists against auto or motorcycle manufacturers for product defects, and the rights of motorcyclists against their own insurance companies under their uninsured motorist and under-insured motorist provisions (applicable both to injuries caused by uninsured motorists and underinsured motorists, as well as to hit and run motorists). Also discussed is the measure of damages recoverable under each of these causes of action. First, however, Mr. Henke will alert you to what should be your most important immediate concern, which is to determine the statute or statutes of limitation and other periods of limitation that will bar the assertion of your rights if you fail to promptly assert them.
While the general principles of law affecting motorcyclists may be grossly similar across the States, a comprehensive discussion of the variations in nuance of law from State to State is beyond the scope of this page. The general discussion provided here is strictly for general informational purposes. It is not intended as "legal advice" and should not be interpreted as such. Every case must be analyzed according to its own particular set of facts. You should not make a determination on your own as to the merits of your potential lawsuit, or the statute of limitations without first consulting legal counsel, either Mr. Henke or another attorney.
Motorcyclists who want to discuss more fully the merits of their particular case, may call Mr. Henke toll free from anywhere in the United States, fill out the easy to submit accident questionnaire, or e-mail him. Mr. Henke does not charge motorcyclists for case evaluation and consultation. Press the "Contact Me" button below.
1. Statutes of Limitation.
A "statute of limitations" is a law providing the time period before which a particular case or particular cause of action, or claim against a particular class of defendant must be filed. Any particular case may present more than one statute of limitations or claims period. Generally, if the "complaint" and/or "claim" is not filed within that the applicable time period, the case or cause of action will be deemed "barred"; that is, the injured motorcyclist will not be able thereafter to pursue his claim.
The first thing you should want to find out is "What is the earliest statute of limitations and/or claim filing date applicable to my case?" The answer is not always so simple as adding one particular statutory time period to the date of the accident. One of the first things a lawyer should do is ask you the appropriate questions designed to provide you a comprehensive and accurate analysis of the potentially applicable limitations and claims requirements. And again, the lawyer does not always fulfill this responsibility so simply as by asking, "When did the accident occur?
To illustrate, if you are involved in an accident in which an automobile driver pulled into your lane of traffic, forcing you off the highway and over a cliff, you may have two claims against two different defendants. The obvious one is the claim against the auto driver for negligence, which may have one statute of limitations. The second claim, which you might not have even thought of, is the claim against the city or county or state which controls this highway, for its failure to provide a barrier between the roadway and the cliff. The latter claim may require that you comply with a government or "public entity" claims procedure much earlier than the time provided by the pertinent statute of limitations. In some States, even if you wait just a few months before filing a government claim you may find that you have lost your rights to sue the public entity.
One additional important qualification cutting across this body of legal technicality is that while it is usually essential, and always best, to file your case within the statutory period following the date of the accident, it would be incorrect to imply that it is always true that the lawsuit will be barred if not filed within that period. If, for example, you were unrepresented and in a coma or otherwise genuinely incapacitated from filing suit for all or a portion of the statutory period following the accident, most States would "toll" the running of the statute of limitations for the period of your incapacity or otherwise permit you to file your lawsuit later than the statutory period as calculated from the date of the accident. As another example in some States if the defendant's Insurance representative let you to "blow" the statute by misrepresentation you may be able to avoid the statutory bar.
If you have not spoken to an attorney about your statute of limitations, you should do so Now.
2. The Lawsuit Against the Negligent Auto Driver Who Caused the Accident: In order to prevail in the ordinary motorcyclist v. auto driver case, the Plaintiff, motorcyclist, must demonstrate "Negligence," "Causation," and "Damages."
"Negligence" is the breach of a duty of care, commonly framed in this context as the failure of one person to use "due care" or "ordinary care" for the safety of another. It is whatever stupid move this other driver made to cause the accident. Negligence in the particular case might derive from a failure of attention, e.g., when an automobile driver turns left at an intersection into the path of an oncoming motorcyclist or pulls out from a parking space or side street into the motorcyclist's right of way. It might derive from the auto driver's ignorance of the motorcyclists legal rights of way, e.g., the motorcyclist's right to split lanes (in States permitting it), or it might be that the auto driver was following to close behind the motorcyclist, not taking into account that motorcycles can stop more quickly than automobiles, e.g., in response to emergency situations.
"Damages" include, general damages, special damages, and in some cases, punitive damages. "General damages," sometimes referred to as "pain and suffering," are the physical disabilities and life consequences of the motorcyclist's injuries, including the limitations upon the motorcyclist's activities resulting from his injuries. "Special Damages" include economic damages for past and future medical expense and past and future loss of earnings or earning capacity. "Punitive Damages," are not compensation, in contrast to general and special damages; rather damages to punish the defendant, or set an example of him, or to send a message of societal intolerance of his conduct, and to deter such conduct by others. Punitive damages, however, are available only where the auto driver was, for example , guilty of "malice," defined variously by different States, however, most commonly as intentional or reckless or conscious or willful disregard for the life (or limbs) of another. Examples of auto driver conduct that have been found "malicious" are drinking and driving, street exhibition, street racing, and then intentional acts that place the motorcyclist at risk, such as an attempt to run the motorcyclist off the road.
"Causation," refers to the cause and effect relationship between the negligence and the damages, sometimes phrased as requiring "actual and proximate causation," or "legal causation," sometimes also defined as requiring that the negligence must have been a "substantial factor" in causing the injuries. Often more that one person's conduct may be the legal cause of an accident, as where one negligent driver hits another car and then the second driver negligently swerves to the left into oncoming traffic, hitting the motorcyclist. In such a case both auto drivers would be liable because the negligence of each contributed as "substantial factors" to cause the accident. It may be important to sue all those arguably responsible for the accident for a number or reasons. It may improve your posture in settlement negotiations. Some potential defendants may be well insured and others not. If you don't sue all, furthermore, then in most States the defendant you have sued may "point at the empty chair," that is seek to establish that the other contributing negligent party was responsible for a substantial percentage of the total liability and thus the sued defendant might seek to limit your damage recovery against him to his relative percentage of fault.
Comparative or Contributory Negligence. Sometimes the motorcyclist's negligence contributes along with the negligence of an auto driver or other entity to cause an accident. The negligence of the motorcyclist generally will not bar his recovery against the others responsible for the accident, however, the motorcyclists recovery will generally be reduced by motorcyclists percentage of fault.
3. Lawsuits Against a City, County or State for Negligent or Defective Road Design, or Negligent Failure to Clear or Repair a Dangerous Road Hazard.
Road design lawsuits are lawsuits that seek to impose liability upon the public entity which built and/or controls the road, usually a municipality or State, for a defect in the design of the roadway. Cities and States may also be held liable for failing to repair or clear dangerous road conditions after they have had "notice" or "constructive notice" of the hazard which creates the risk of injury. In each type of case, the Plaintiff must also prove "causation" and "damages," to wit, that the road design defect or hazardous road condition was a substantial factor in causing the accident and the motorcyclist's injuries. The elements of "causation" and "damages" are generally the same as those discussed at subsection 2, immediately above.
4. Lawsuits Against the Auto or Motorcycle Manufacturer for Defects in Design, Manufacture or Warnings Resulting in Motorcyclist Injury.
Motorcyclist injuries will sometimes result from the auto or motorcycle manufacturer's negligence, or by reason of "defects" in the automobile's or motorcycle's design, manufacture or warnings. If an auto wheel is defectively designed so that it will sometimes fall off and a motorcyclist is injured when the wheel falls off and the auto veers out of control, that is a design defect case. If a motorcycle handle bar is designed properly, however, due to a metallurgic defect in the manufacture of this particular handle bar it breaks in two after the bike runs over an ordinary pot hole, that is a manufacturing defect case. Product liability cases can generally be prosecuted either on the basis of the "negligence" of the manufacturer in its design, or manufacture or failure to warn, or, on a legal theoretical basis called "strict liability." Each theory may have its advantages in any particular case. Negligence in this context would refer to the manufacturer's failure to use due care in its product design, manufacture or provision of warnings. Strict liability generally relieves the Plaintiff of demonstrating negligence, permitting recovery when the Plaintiff can demonstrate that a product defect caused the injury. Under either product liability theory, the Plaintiff must also prove causation and damages. See, discussion at subheading 2, above.
5. Where the Other Party Is Under Insured. Strategies to "Open Up" The Policy Limits On the Driver's Policy. Asset Searches To Determine the Auto Driver's Personal Wealth. Claims or Lawsuits Against the Motorcyclist's Own Insurance Carrier For Med Pay and Uninsured Motorist Coverages.
All too often the automobile driver will have carried insufficient insurance to cover the full magnitude of the motorcyclist's "damages" for pain and suffering, past and future lost earnings and earning capacity. There are strategies, such as an early policy limits demand, to try to "open up" the auto driver's insurance policy so that the insurance company will be legally bound to pay the full damages suffered by the motorcyclist notwithstanding that the damages may far exceed the auto driver's stated policy limits. Prior to a policy demand one should generally first determine that the defendant driver is without significant wealth. Sometimes also an asset search will uncover that the other driver has the personal wealth to pay the damages. Where the other party is uninsured or under insured the next source of recoupment may be from your own motorcycle insurance policy, assuming you have uninsured motorist coverage. Again there may be ways of "opening up" that policy too. If the insurer does not promptly respond to a reasonable demand for settlement, it can then be sued in a "first party" insurance bad faith lawsuit, and be made to pay the full measure of damages, and sometimes even punitive damages.
You may also be able to recover against your own insurance company even when you have been hit by a hit and run driver. There are generally requirements for recovery, e.g., actual physical contact between the hit and run vehicle and the motorcycle. Generally the law that would apply is analogous to the law that applies where the other party is uninsured.
6. A Strategy for Assuring That You Will Not Be Left Out in the Cold In Case of An Accident.
As skillfully and safely as you can and do ride, you have to realize that in the vast majority of motorcycle accidents, the motorcyclist was driving safely. In 86% of motorcycle accidents it is the other driver's negligence that causes the accident. So, while you can reduce the risk of accidents by your skill and care, you simply cannot eliminate the risk. Henke has had his share of serious accidents over the years, and he hasn't met an old timer yet who hasn't had a serious accident. Therefore, if you ride, you must anticipate that one day you will get into an accident. And you should prepare for that day. The best way to make sure that you are protected in case of accident is not to rely upon the other driver to be wealthy or well insured. Since riding a bike involves risk, you should purchase ample insurance yourself to cover the risk. You should have both good health insurance and good motorcycle coverage with medical and uninsured motorist coverage. And you should get the highest limits you can obtain and afford.
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