May 2011 Archives

Some Harley Motorcycles Plagued By 'Death Wobble'

In a recent story in KPHO Channel 5 Phoenix "Some Harley Motorcycles Plagued By 'Death Wobble'- Riders Blame Design Of Certain Models", some local riders are complaining of a design flaw in Harley Davidson Motorcycles. They call it, ominously, the "death wobble".  It is also known as rear steer and tank slap. 

Harley-Davidson does acknowledge that its bikes are susceptible to a weave or wobble -- depending on the bike's speed. But they said that this does not cause accidents, and that weave or wobble happens to other bike manufacturers, regardless if it is a Harley or not. Harley also said the wobble problem is worsened when riders add on certain parts and suggests people follow the owner's manual.

According to some riders, the motorcycle can start shaking at as little as 25 to 30 mph.   It is such a danger that even some very experienced and well trained riders, motorcycles officers in fact, may have been killed as a result: 

In 2002, 30-year-old [police officer] Charles Paul was thrown from his Harley Electra Glide after it began to wobble. He died, and his family later settled a wrongful death suit with Harley-Davidson in 2008.

Three models in particular are blamed, the Road King, Ultra Classic, the Electra Glide and FLH series.   

While Harley Davidson is American through and through, I certainly hope the company is not taking the American rider for granted.  If Harley Davidson is not doing everything its power to make its motorcycles as safe as possible, then this is just like the story I heard in law school of how Ford Motor Company knew full well that the Pinto was dangerous and defective, but decided that defending wrongful death products liability lawsuits was cheaper than fixing the design.  

Let's hope Harley Davidson, the same company that gained its foothold by selling courier bikes to the US Army in War World One for use by American Dough boys, has not made the same cynical decision as Ford did with the Pinto. 

Arizona Injury Claim in Bankruptcy: What Will Happen to My Lawsuit?

If you have the right to file a lawsuit and sue someone for a personal injury claim, for example a car accident or motorcycle accident, but you are also short of cash, what will happen if you file bankruptcy in Arizona? Do you get to keep the money from your personal injury settlement if you are in bankruptcy? Does the bankruptcy trustee take over the claim and you lose all the money you would get from the insurance company? What if you don't tell the bankruptcy court about your personal injury claim?

The short answer is in Arizona you can lose all your non-exempt property in a Arizona chapter 7 bankruptcy. That could include things like a car that has value over the exemption amount, stocks, and cash. And yes, for the most part, the right to sue someone and collect money is generally non-exempt. In the personal injury context, with some minor exceptions like worker's compensation claims, a personal injury claim is personal property and non-exempt. That is found in Federal law under 11 USC 541(a).

That means if you have a pending personal injury claim for an accident and you file bankruptcy under chapter 7, the bankruptcy trustee, who represents the unsecured creditors has the right, but not the obligation, to take over the claim and settle it on behalf of the creditors. That usually means the trustee will take the first reasonable offer available even if a little bit of work would get more money. You, the debtor and victim, will usually get nothing.

If you have a personal injury claim and do not tell the bankruptcy court or trustee, other than getting in trouble with the bankruptcy court, it could also cost you your personal injury claim. That is because a personal injury defendant, and the insurance company representing him, can assert "claim preclusion". That is just a fancy word for the simple concept that because you told the bankruptcy court that you did not have a personal injury claim when you filed bankruptcy, you have now lost your right to sue.

Was the US Army Dumping Agent Orange in South Korea?

KPHO Channel 5 of Phoenix has a great story on its website on how the US Army may have dumped Agent Orange in South Korea after the Vietnam War

According to KPHO "[t]he U.S. military has opened an investigation into the dumping of Agent Orange...", and more than one veteran has come forward:

"My whole life, this is what made me what I am and why I am like I am, because I come home, and I couldn't live with what I had done," said veteran Steve House.  

The initial CBS 5 investigation took our crew across the U.S. - investigating House's story. And they found three soldiers all stationed at Camp Carroll in South Korea during 1978, saying the exact same thing.

Because of their exposure to Agent Orange, many of these soldiers are now "living with the toxic aftermath."   That point is important because "there appears to be a link between Agent Orange and kidney cancer in U.S. veterans exposed to the herbicide in Vietnam, a new study suggests."

And as a result of the KPHO story, the Korean Ministry of Environment has launched their own investigation.  According to the South Korean newspaper Korea Joongang Daily:

The Ministry of Environment launched an investigation yesterday, after a news report this week said the U.S. military allegedly buried highly toxic Agent Orange - used as a defoliant during the Vietnam War - at one of its camps in Korea. 

This story is an excellent example of journalism at its finest.  Regardless of what the particular outcomes of the American or South Korean investigations may be, the fact that a local news organization was able to conduct a major international investigation and have those findings force the hand of two reluctant governments, let's just say it makes me proud to be an American.   The New York Times can boast all it wants about how it is the- almost entirely self-professed- best news organization it the world, but I don't see them accomplishing anything like KPHO just did with this story. 

Electric Motorcycles are the Wave of the Future and Getting Much Faster Too

The tide of progress is inevitable if erratic. One more milestone on that path is a motorcycle even more economical and cleaner than the average motorcycle: the electric motorcycle. And fortunately for us motorcycle fans, they are getting faster as well.  


In a recent story in the Los Angeles Times regarding the TTXGP North American Championship

Electric motorcycles are closing the speed gap on internal combustion bikes. Brammo won the kickoff to this year's TTXGP North American Championship series Sunday, clocking the fastest-ever lap speed at Infineon Raceway for an electric motorcycle with its Empulse RR -- and showing the quick evolution of a sport that didn't even exist until 2009.

While this motorcycle is not quite as fast as a regular gasoline powered motorcycle, the technology is improving and the electric motorcycles are getting much faster than just a few years before. 

Its average lap speed was within 20 seconds of the fastest qualifying lap time of a 1,000cc internal combustion superbike on the same track. Its average lap speed was within 20 seconds of the fastest qualifying lap time of a 1,000cc internal combustion superbike on the same track.

According to their website, TTXGP is the eGrand Prix

TTXGP, the eGrandPrix is an international race series providing a high profile platform for the development of electric vehicles.  Using motorcycles as a resource effective development platform, TTXGP enables the futuristic technology behind them to be tested in an exciting and challenging way. TTXGP aims to drive low carbon technological innovation forward, to demonstrate that clean-emission transport technologies have matured and can be fun, fast and exciting.

This is wonderful news.  The idea that we can make economical, fun, and fast motorcycles is nothing but good news. Let's hope this technology keeps advancing so that electric motorcycles will be affordable and available. 

Decade in Prison from Maricopa County Detention Officer who Killed Motorcyclist

Most people who don't ride motorcycles, and some who do, are not aware of just how dangerous rear end accidents are.  I certainly did not realize it until I started riding myself. Point in fact, what would be a fender bender in a car could be fatal in a motorcycle.   Since 1966, over 100,000 motorcyclists have been killed in accidents.  Approximately 75% of those accidents are with passenger vehicles.  It is a simple matter of physics that a motorcycle will suffer more damage than a car and a rider more injury than a driver. 

Statistics from the US Department of Transportation's Fatality Analysis Reporting System found that rear end accident caused 3.5% of motorcycle fatalities.  Front end was the cause 40% of the time, and fixed object impact was the cause 26% of the time. 

Just recently, a Maricopa County Detention Officer, Adrian Salazar Guzman, who was working at the super maximum secure Fourth Avenue jail, the jail that houses the most serious and dangerous offenders, killed a motorcycle rider when he hit the motorcycle from behind. 

According to a story in The Arizona Republic "[c]ourt records show that 27-year-old Alisha Marie Trejo was killed Oct. 16 when her motorcycle was hit from behind while at a stop sign."  It appears that Mr. Guzman had been drinking "throughout the day and left the last bar about half an hour before the crash."  As a result of his conviction for manslaughter, he received a prison sentence of 10.5 years in prison.

This story is important because it demonstrates just how vulnerable motorcycle riders are and why small changes in the way we ride and state laws could save the lives of motorcyclists.  For example, while lane splitting might seem dangerous, it could actually save lives because less time would be spent at intersections as sitting ducks.  Also, it may be time Arizona as a state banned texting while driving as the most vulnerable people on the road are motorcyclists, and I have never seen a motorcyclists text while riding.  Finally, remember that most, if not all, motorcycle safety instructors advocate staying in gear while sitting at an intersection in case you need to make a quick  getaway.  

I know some motorcycle riders invest in rear view looking cameras.  When I first heard that, it seem a touch extravagant; now it seems as if it's not such a bad idea.   

Did Texting Kill Couple Walking on a Scottsdale Sidewalk?

In a very sad story over this past weekend, a Scottsdale couple died when a SUV driver rode onto a sidewalk and killed the couple. According to Laurie Merrill and Lauren Featherstone of the Arizona Republic, the couple:

Randall Bjerken, 51, and his wife, Doris Bjerken, 50, of Palmer, Alaska, were hit by a burgundy GMC sport-utility vehicle that jumped the sidewalk and struck them before crashing into a power pole, Scottsdale police said.

According to police neither alcohol or drugs were a factor in this collision. Any possible charges are pending further investigation.  According to KPHO

Scottsdale police Officer David Pubins said the 23-year-old male driver of the SUV was taken to a local hospital with non-life-threatening injuries. The man lives in Scottsdale.

What is very sad about this story is that the vacationing couple from Alaska were not doing anything inherently dangerous.  They were just here in Arizona on a trip and talking a walk on a nice weekday afternoon.  Short of a positive drug or alcohol test, the odds of Scottsdale Police prosecuting the driver is remote.  

While none of the news agencies are reporting it, my suspicion is that this may very well be a case of a distracted driver losing control of his vehicle while texting.   If that indeed turns out to be true, the 23-year old could be prosecuted for a felony.  In a recent case in Massachusetts, a teen driver was prosecuted for manslaughter

The Essex District Attorney has charged Aaron Deveau, 17, of Haverhill with motor-vehicle homicide, texting while operating a motor vehicle negligently and causing injury in connection with a crash. The auto accident killed a passenger in the other vehicle.

Even though some law enforcement agencies claim texting while driving is as dangerous as drunk driving, Arizona has not banned texting statewide. Phoenix passed a ban on texting while driving in 2007. 

Medicare Liens in Arizona: The Feds Want Your Money

One of the things that catches people off guard is the fact the federal government will want reimbursement if they paid for your medical treatment and you recovered from insurance benefits.  For example, if you receive Medicare benefits, you are over the age of 55 or qualify otherwise for Medicare benefits, and Medicare pays part of you health care expenses as a result of an accident, Medicare will want reimbursement for what it paid out.

Many private insurance companies will want reimbursement as well, but private insurers are not usually entitled to reimbursement.  As you may imagine, Medicare being a federal government program, is different.   Medicare has what is called a "super lien".   That means that Medicare can collect against 3rd party liability insurance settlement, directly against the liability insurance company even if they have already paid settlement, 1st party insurance settlement, and they can even go directly go into the victim's attorney's bank account and take the money out his or her bank account. 

How much of your settlement will Medicare want?  They won't take all of it, or will they?  Medicare will sometimes seek 100 % reimbursement.  But in Bradley v. Sebelius, the Eleventh Circuit Court of Appeals ruled against the agency's claim for 100% lien reimbursement in a wrongful death case.   No one from Medicare offered to negotiate the lien yet it demanded a full recovery.   In that particular case, the settlement was $52,000 and Medicare wanted full reimbursement of $38,000. The Circuit Court of Appeals disagreed and award Medicare only $800.