|  |
Motorcycle law, as Mr. Henke will define it here, is the general body of law that defines the rights of motorcyclists arising out of the negligence of another motorist; the motorcyclist's rights against a public or governmental entity for defective road design or for failure to repair or clear a road hazard; the liabilty of auto or motorcycle manufacturers for product defects; and the legal rights of motorcyclists against their own insurance companies under their uninsured motorist motorist coverage provisions (applicable both to injuries caused by uninsured motorists and underinsured motorists, as well as to hit and run drivers).
The measure of damages generally recoverable under each of these causes of action is also discussed.
However first 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.
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..
Motorcyclists who want to discuss more fully the merits of their particular case, may call Mr. Henke toll free from anywhere in California. Simply fill out the easy to submit Motorcycle Accident Lawyer Contact Questionnaire. Mr. Henke does not charge motorcyclists for case evaluation and consultation. Press the "Contact Me" button above.
1. Statutes of Limitations.
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 speaking, 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. It is possible that there might be exceptions applicable to a particular case, or another theory or cause of action which might be brought, and therefore the lay person should not make this determination that his or her particular case is barred by the statute of limitations without first consulting a lawyer.
The first thing you should want to find from a lawyer is "What is the earliest statute of limitations and/or claim filing date applicable to my case?" The answer is often but not always so simple as adding one particular statutory time period to the date of the accident. The first thing a lawyer should do is ask you the appropriate questions in order to provide you a comprehensive and accurate analysis of the potentially applicable limitations and potential claims filing requirements. And again, the lawyer does not always fulfill this responsibility accurately simply as by asking, "When did the accident occur?
To illustrate this, just as one example, if you are involved in an accident in which an auto driver pulled into your lane of traffic, forcing you off the highway and over a cliff, you may have two claims against two different potential defendants. One is the claim against the auto driver for negligence, which will give rise to one statute of limitations. The second potential claim, which you might not initially consider, is the claim against the public entity - 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, involving the filing of a "government claim" within a much shorter time period than the time provided by the pertinent statute of limitations.
Because Mr. Henke considers that the statute of limitations is a matter that should be considered by lay people only with the advice of counsel, and because this web page may be viewed by motorcyclists who have been involved in accidents in states other than California, the specific time periods provided by the California statute of limitations and California government claims provisions will not be set forth.
One additional very 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 period of the statute of limitations following the date of the motorcycle accident, it would be incorrect to state 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 or defendant's insurance representative led 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. Henke's recommendation is that you obtain highly qualified counsel to represent you in your case, and that you do so without delay.
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. In bikers terms, it is whatever idiotic move this other driver made to cause the accident. Negligence in the particular case might derive from a failure of attention, for example where an automobile driver enters an intersection or turns left into the path of an oncoming motorcyclist or pulls out from a parking space 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 in California to split lanes, 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 in response to emergency situations. Auto drivers also will change lanes into motorcyclists, not realizing that their car rear view mirrors have holes in them and that they need to turn their heads to check for the motorcyclist before changing lanes.
"Damages" include what are commonly referred to as general damages, special damages and in some cases punitive damages. "General damages" sometimes referred to as "pain and suffering" are actually a broad category of damages including the physical disabilities and life consequences of the motorcyclist's injuries, and the limitations upon the motorcyclist's activities resulting from his injuries. "Special damages" includes economic damages for past medical expense and future medical expense and past lost earnings and future loss of earning capacity. "Punitive Damages" in contrast to general and special damages are not "compensatory damages"; they are damages to punish the defendant, or set an example, or to send a message of societal intolerance of his conduct, or to deter similar conduct by others. Punitive damages are available only where the auto driver is guilty of "malice," variously by different states, however, most commonly as intentional or reckless or conscious or willful disregard for the life (or limbs) of another. As one example, Henke is currently prosecuting a case involving punitive damage motorcycle case in which an irate auto driver drove a biker off the road, pulled over, punched the biker, then got back into his car, ran over his bike and then chased the fleeing biker down the street and ran over him.
"Causation," refers to the cause and effect relationship between the negligence and the resulting damages. In most states it is referred to as "actual and proximate causation" or "legal causation," or as requiring that the negligence must have been a "substantial factor" in causing the injuries and damages. 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 responsible for the accident. It may improve your posture in settlement negotiations. Some potential defendants may be well insured and others not so well insured. 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 or avoid damage liability altogether.
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. In most states, including California, the negligence of the motorcyclist 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, maintains and/or controls the road, usually a municipality, county or state. Public entities 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.
Motorcycle accidents will sometimes result from the auto or motorcycle manufacturer's negligence, or by reason of "defects" in the automobile's or motorcycle's design or manufacture or inadequate warnings. If an wheel on a car or truck is defectively designed so that it falls off and a motorcyclist is injured when car then veers out of control, that is a design defect case. If a motorcycle handle bar is designed properly but 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 theory called "strict liability." Each theory may have its advantages in any particular case. Under either product liability theory, the Plaintiff must also prove causation and damages, discussed above.
5. Where the Other Party Is Uninsured or 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 medical expense, lost earnings and earning capacity. If the motorcyclists carries uninsured motorist coverage then his own insurance company will be liable for the difference between the limits of the at fault driver's policy and the limits of the motorcyclists uninsured motorist coverage. Sometimes also an asset search will uncover that the other driver has the personal wealth to pay the damages. There are also strategies, such as an early policy limits demand, which the motorcyclist and his attorney may consider 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.
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 80% of multi-vehicle 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. In motorcycle accidents, because we don't have the interior padding, seat belts and air bags that protect auto drivers, we will often find ourselves seriously or catastrophically injured. Henke has had his share of 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 well insured or sufficiently wealthy to compensate you for your injuries and damages. 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. You should get the highest policy limit uninsured/underinsured motorist coverage you can obtain.
|
| 
|
