You Should Know: Motorcycle Injuries, Insurance and Prevention

Americans love motorcycles: the wide-open road, the sense of freedom, the “Born to Be Wild” spirit of rebellion. Perhaps you are thinking about a biking adventure as well this summer? You wouldn’t be alone. According to numerous government and industry sources, motorcycle ridership in the United States is at an all-time high, especially among older riders.

Fatalities Continue to Rise Among Older Riders

Common sense tells us that motorcycling is simply more dangerous than driving a car. Aside from four wheels over two, cars are equipped with numerous safety features, including seat belts, air bags and a surrounding structure that protects occupants in a crash. Motorcycles are also less visible to other drivers, and require more mental and physical skill to operate safely. Finally, motorcyclists are more vulnerable to bad weather and hazardous road conditions.

While the overall number of motorcycle injuries and deaths declined slightly in 2013 and 2014, fatal accidents among older riders continue to rise. Riders 50 and older accounted for 3 percent of motorcycle fatalities in 1982, 13 percent in 1997 and 36 percent in 2014, according to the Insurance Institute for Highway Safety. Aside from the inherent dangers of motorcycling, riding without a helmet, while intoxicated or speeding are often cited as contributing factors as well.

Insurance May Not Cover Personal Injury

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Click to expand this Fool's Gear, Cool Gear infographic.

After strapping on your helmet, the next best protection you can have in case of a motorcycle accident is insurance. While all 50 states require minimum insurance coverage to operate a motorcycle, be aware that the minimums may not adequately protect you in a serious accident. Like any type of insurance, how much you'll need will depend on many different factors, including the type of bike you own, how often you ride, your marital status, your personal assets and your budget.

Liability covers bodily injury and property damage that you may cause to others involved in an accident. Other coverages include uninsured or underinsured motorist, which covers personal injury and damages caused by the driver of another vehicle who either does not have insurance or does not have sufficient coverage; collision, which covers physical damage to the motorcycle involved in a crash with an object, tree or another vehicle; comprehensive, which covers a loss from non-collision sources, such as theft, vandalism, fire or hail; and in states where applicable, medical payments or personal injury protection (PIP), which covers physical injuries to the rider and passenger.

Beyond liability, your first priority should be the coverages that pay you – and your passenger – for medical treatment, lost wages and other damages. These include uninsured/underinsured and PIP. Note, however, that the risks associated with motorcycling often make it very expensive to increase these coverages. In some cases, for example, PIP may not even be available, or may be so expensive that it is out of reach for most individuals. As when purchasing any type of insurance, seek the advice of a qualified advisor and carefully review policies from several different insurers.

Preventing Motorcycle Accidents – Tips for Riders and Drivers

To help combat the growing safety issues with motorcycles, the Motorcycle Safety Foundation has set out to improve safety through education, training and licensing. Since 1974, over 7.5 million motorcyclists have taken MSF training courses. 

The Foundation offers the following tips for riders and drivers (download) to help prevent motorcycle accidents.

For Riders:

• Be Properly Trained and Licensed – Half of all riders have never taken a proper safety class. If you take the Motorcycle Safety Foundation’s Basic Rider Course, some states will waive the written portion of the motorcycle endorsement test.
• Wear a Helmet – The facts are irrefutable: Helmets prevent fatalities an estimated 37 percent of the time for motorcycle drivers, and 41 percent of the time for passengers in motorcycle accidents, according to the NHTSA. And aside from being smart, wearing a helmet the law in 19 states and the District of Columbia.
• Fool's Gear, Cool Gear – What you wear can make it easier for drivers to see you and better protect you in a crash. 
• Never Drink and Drive – In 2013, 28 percent of cycling fatalities involved riders who were legally intoxicated.
• Ride Within Your Skill Limits and Obey Traffic Laws – Don’t ride faster or farther than your abilities will allow.
• Be a Lifelong Learner – Take advanced courses to brush up on the basics and keep improving your skills.

For Drivers:

• Watch for Motorcyclists – Motorcycles are smaller than other vehicles and often harder to see. In 42 percent of the fatal motorcycle accidents reported in 2013, a vehicle made a left turn in front of an oncoming motorcycle.
• Focus on Driving – Motorcyclists are easy to miss even when you are paying attention. Studies show that distracted drivers simply don't see certain objects like signs, motorcyclists and pedestrians. Hang up the cell phone or mobile device.
• Give Motorcyclists Enough Room – Maintain a safe distance between your car and a motorcycle and don’t change lanes too close. What would be a minor fender bender between two cars could easily be fatal to a motorcyclist.
• Use Your Turn Signals – For everyone’s safety, use your turn signals. It is also the law.
• Keep Trash in the Car – Road debris can kill a rider. And don't throw cigarette butts out of your car, either.

 This article appeared in our July 2016 "You Should Know" e-newsletter. 

You Should Know: The Latest on Marijuana and Driving

A patchwork of state laws define marijuana intoxication.

Marijuana and Driving

Studies analyzing the effects of driving under the influence of marijuana have been marked by contradictory research and imprecise measurement. Two major studies published by the National Highway Traffic Safety Administration (NHTSA) in February 2015 shed new light on a topic of increasing concern as 24 states have legalized marijuana (four states and the District of Columbia for recreational use, the rest for medicinal use). According to a recent article in Timemagazine, another five states could follow suit this year.

NHTSA’s first report confirmed predictions that legalization might lead to more stoned drivers. In a 2013-14 roadside survey of more than 9,000 drivers, 12.6 percent tested positive for THC (the principal psychoactive ingredient in marijuana,) compared to 8.6 percent in 2007 – a 47 percent increase. The percentage of drivers at or above the legal limit for alcohol was 8.3 percent, down 80 percent since a 1973 NHTSA roadside survey.

But here’s where the story takes an unexpected turn. The second NHTSA report focused on crash risk in what the agency described as the “first large-scale study in the United States to include drugs other than alcohol.” Data was collected from more than 3,000 crash-involved drivers and compared to 6,000 drivers not involved in crashes. While drivers who tested positive for THC were 25 percent more likely to be involved in a crash, other factors like age, gender, ethnicity and blood alcohol concentration were considered more likely the culprit than the presence of drugs. NHTSA researchers didn't mince words, writing: “Caution should be exercised in assuming that drug presence implies driver impairment.”

Meanwhile, the number of traffic fatalities involving marijuana-stoned drivers has increased in Washington and Colorado since both states legalized the recreational use of the drug, according to two recent reports. The percentage of drivers who used pot within hours of a fatal crash in Washington nearly doubled from 2013 to 2014, according to a just-published AAA study. A similar increase was recorded in Colorado with 10 percent of drivers in fatal accidents testing positive for marijuana in 2011 versus 5.9 percent in 2009.

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OK, So What’s “Under the Influence”?

Findings from these studies underscore another important point in this discussion: Measuring impairment in a person using marijuana isn’t comparable to blood alcohol concentration. “Most psychoactive drugs are chemically complex molecules, whose absorption, action and elimination from the body are difficult to predict,” NHTSA writes, "and considerable differences exist between individuals with regard to the rates at which these processes occur. Alcohol, in comparison, is more predictable.” Some marijuana users can have measurable amounts of THC in their bodies days or even weeks after using the drug, long after any psychoactive effects remain.

The uncertainty surrounding the intoxicating effects of marijuana is reflected in the patchwork of state laws defining driving “under the influence” of drugs. Some states follow a zero tolerance standard, making it illegal to have any presence of THC or other illegal drugs in your body while driving. Others set a legal THC limit expressed in nanograms (one-billionth of a gram) per milliliter of blood. In others, impairment is inferred based on the circumstances rather than defined by blood THC levels.

To review the laws on marijuana and driving in your state, click here.

What’s Next?

Of course, no one is suggesting that people should “blaze one and go for a joyride whenever the whimsy strikes,” wrote a New York Times reporter after reviewing the NHTSA study. There is plenty of evidence to show that marijuana use impairs driving skills. And as all these studies make clear, we need more research on the effects of marijuana and driving, along with better equipment for detecting and measuring marijuana-related impairment. It is also clear that the science of intoxication surrounding marijuana is different than that of alcohol and may demand a more nuanced response by policymakers, law enforcement and court officers. In other words, stay tuned for more on this evolving topic.

 This article appeared in our June 2016 "You Should Know" e-newsletter. 

The Dangers Of Driving Under The Influence Of Any Drug, Including Pot

Guy W. Crabtree

In North Carolina, a person is guilty of driving while impaired if they operate a motor vehicle while under the influence of alcohol or an impairing substance. The THC in marijuana would be considered an impairing substance. One would be impaired within the meaning of the law if one had taken a sufficient amount of THC to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.  

While we too often encounter wrecks caused by drivers impaired by alcohol, a case involving impairment solely by THC is rare. One reason, of course, is that there is no roadside or magistrate’s office testing apparatus that can easily measure the amount of THC in a driver’s blood. There is no breathalyzer test to detect THC. A blood draw and testing of that blood is necessary.  

When investigating a case where impairment is suspected and the at-fault driver was taken for medical treatment as a result of the wreck, we always attempt to get the medical records, including the lab reports, from that treatment. The blood test will usually include testing for TCH and other drugs. If drugs are present we can and will use that information in our client’s favor as we prosecute our client’s case. 

Causing injury and damage while driving while impaired will subject the impaired driver to punitive damages and we will often include such a claim in the overall damages claim.

Guy W. Crabtree is a partner with Crabtree, Carpenter & Connolly, PLLC, in Durham, NC. The firm helps injured parties from all over the nation recover from injuries caused by the negligence of others.

You Should Know: Forced Arbitration Is Forced Injustice

Tia’s employment case against Circuit City was thrown out of court even though her boss sexually harassed her for months, once even exposing his genitals. Javier lost his job when he was deployed overseas despite federal laws protecting employment for members of the armed services. Alan and other small business owners were told they couldn’t take American Express to court for charging exorbitant exchange rates. Marjorie, Roberta, Richard, Dean, Frances, Beulah, Horace and Mary all suffered terribly and died from nursing home neglect, yet their families were not able to sue the nursing home companies.

How could injustices like these be allowed to exist in America where everyone has the right to take wrongdoers to court? It’s called forced arbitration, and you or a loved one may be next to lose your rights.

Harassed, Assaulted and Then Dismissed

Tia was sexually harassed by her boss at Circuit City for months. Her story here.

Tia thought she was taking a step forward when she became a manager-in-training at electronics giant Circuit City. Instead she endured months of sexual harassment by her boss, who at one point exposed his genitals to her. He was also captured on video grabbing Tia’s hand and parading her around the store as she tried to escape.

But the worst was yet to come. When Tia filed a sexual harassment claim against the chain, her lawsuit was thrown out of court because of a legal time bomb in her employment contract called a forced arbitration clause. Circuit City went out of business while Tia was in arbitration and her case was dropped.

A “Get Out of Jail Free” Card for Corporations

Dean Cole’s family tried holding a Minnesota nursing home accountable in court after he died of neglect, but they were forced into arbitration where the truth was hidden from the public. His story here.

Tia is among a growing number of Americans learning about forced arbitration clauses the hard way. Thousands of businesses, from credit card companies, banks and investment firms to cell phone providers, schools and nursing homes, are inserting legalese into employment contracts and service agreements called “forced,” “binding” or “mandatory arbitration.” When something goes wrong – and in some cases terribly wrong – the customer, renter, homeowner, resident, patient, employee, etc., is forced into arbitration. And that’s when the bomb goes off!

Individuals almost always lose to businesses in arbitration (97 percent of the time according to a 2007 Public Citizen report) because arbitrators are hired and hand picked by the offending businesses. Decisions from the arbitration proceedings are secret, and there is no appeal. Most forced arbitration clauses also include a ban on class-action lawsuits as well, preventing consumers from joining forces to fight wrongdoing. A recent investigative series by the New York Times called forced arbitration “a far-reaching power play orchestrated by American corporations,” and quoted state judges who called it a “get out of jail free” card.

A Short But Disturbing History

The use of forced arbitration clauses is a relatively new tactic developed by a Wall Street-led coalition of credit card companies and retailers. Their goal, according to interviews with coalition members and court records, was simple: find a way to legally insulate businesses from lawsuits. Consumers and advocacy groups eventually cried foul and challenged the use of forced arbitration clauses and the ban on class-action lawsuits. But in 2011 and again in 2013, the U.S. Supreme Court upheld forced arbitration. With the floodgates now open, the use of forced arbitration clauses exploded far beyond the financial services industry and is now found in everything from daycare and dog sitting services to cable television and funeral homes.

How Do You Fight Back?

You can learn how to identify arbitration clauses before you sign a contract or click the little box next to “I agree to these terms and conditions.” You can then take your business elsewhere. However, this option isn’t always practical if you want cell phone service, for example, or need a new job. Your other option is to support efforts by some lawmakers, government agencies and consumer advocacy groups to stem the tide of forced arbitration. Here’s a few:

• The Consumer Financial Protection Bureau (CFPB) is a government agency that protects consumer rights in the financial services industry. The CFPB recently announced a proposed rule that would ban class-action waivers in service contracts for credit cards, checking accounts and other financial services. Right now the CFPB wants to hear from the public on this proposal. Go here to add your comments and support the ban on these restrictive waivers.
   
• The Centers for Medicare and Medicaid Services (CMS) is also working on a similar provision, which would forbid mandatory arbitration clauses in nursing home contracts.
   
• The Department of Education has recently announced it’s considering a proposal that would prohibit colleges from including mandatory arbitration clauses in their enrollment contracts with students.
   
• U.S. Sen. Al Franken (D-Minn.) and U.S. Rep. Hank Johnson (D-Ga.) have introduced the Arbitration Fairness Act, which would do away with forced arbitration clauses in contracts that ban class-action in employment, consumer, antitrust or civil rights disputes. To voice your support of this legislation, sign our petition at Take Justice Back.

 This article appeared in our May 2016 "You Should Know" e-newsletter. 

You Should Know: Cell Phones Not the Only Cause of Distracted Driving

Teens Most at Risk but Often Learn Dangerous Behavior from Parents    

Americans hate to waste time, even while driving. Whether via smartphones or the new hands-free systems standard in many vehicles today, we can talk with friends, family or business associates, search for the nearest gas station, or pull up a review of that new restaurant. Most people also think they can do all this while driving and not cause a crash. But that’s where they’re wrong: An estimated 431,000 people were injured in distracted driving-related motor vehicle accidents in 2014, up from 424,000 in 2013. The death toll was 3,179.

What exactly is distracted driving? Cell phones factor into many kinds of distractions, but there are plenty of other ways to lose focus while driving. The three types of distracted driving as identified by the Centers for Disease Control (CDC) are:

• Visual: taking your eyes off the road
• Manual: taking your hands off the wheel
• Cognitive: taking your mind off of driving

This can include texting, talking on a phone, eating, grooming, reading, using a navigation system, adjusting music or reacting to the behavior of a passenger.

Texting while driving tops the list of dangerous distractions and has already been banned in 46 states. Research has shown that texting and driving is as dangerous as driving while intoxicated. Texting is also the communication method of choice for most young people. Therefore, it is not surprising, say many safety advocates, that drivers under 20 have the highest proportion of distraction-related fatal crashes.

Parents can play an important role in teaching their teens about the dangers of distracted driving by setting a good example themselves, yet 48 percent of teens have seen their parents use a cell phone while driving. Fifteen percent have seen their parents texting while driving [download report].

Watch for Other Distracted Drivers and Pedestrians

Even if you’re a good driver and try to stay focused on the road at all times, you have to be aware of others who might be distracted. Ninety percent of adults consider distracted driving unacceptable in other drivers, yet 35 percent of those same drivers admit to driving distracted. Defensive, focused and cautious driving is your best bet to prevent an accident with a careless driver.

Another dangerous behavior on the rise is distracted walking. Even if a person is not behind a wheel, they can be at risk if walking while talking on a cell phone or listening to music through headphones. Among those 19 and under, teens account for 50 percent of all pedestrian deaths. Older teens have accounted for a staggering 25 percent increase in pedestrian injuries in the past five years. Over half of all adults have been involved in a distracted walking encounter.

Stop Distracted Driving Before It Stops You

Distracted driving accidents may be on the rise, but these incidents are 100 percent preventable. Here are some commonsense tips on how you can protect yourself and others:

• Visual distractions: Keep your eyes on the road, pull over to read directions, and put your phone away.
• Manual distractions: Keep your phone out of reach, make all adjustments before driving, and don’t reach for items while driving.
• Cognitive distractions: Avoid phone calls (even hands-free), stay focused on the road, and keep your emotions in check.

Also consider visiting EndDD.org for a safe driving agreement that you can print and share with your family. Together, we can keep our streets safe for pedestrians and drivers alike.

 This article appeared in our April 2016 "You Should Know" e-newsletter. 

Lessons I Learned When a Friend Died

Angie Elliott

There is no good time to bring up the subject of death and dying. There is no happy way to discuss such a sad topic.

And yet we have to talk about it – and plan for it – because doing so may spare our loved ones unnecessary time, money and grief.

I learned this over the past year, as I’ve served as Administrator of the estate of an old friend who passed away unexpectedly this summer.

He was 53 years old.  We were not especially close any more, but he had been an important part of our lives for many years. His will was old, and my name was still listed. After much thought and prayer, I accepted the role of Administrator.

I suppose this is lesson number one – expect the unexpected. After all, serving as estate Administrator is really not something you expect to do for a peer or friend, especially at our age. 

Lesson two – just because I work at a law firm and am familiar with estate planning and administration didn’t mean I didn't still have much to learn. There was lots of on-the-job training.

Here are some practical pointers worth sharing.

• Make sure you communicate with your family if you want to be buried or cremated (or an organ donor, etc). That is a hard decision for a family to make in the heat of the moment if you have no idea what your loved one’s wishes are. Cost should be a factor in this decision. Are you leaving your family enough money to have a funeral?
• Create a “when I die” memo and make sure your spouse/significant other/child/parent/somebody knows where it is located. In this memo you should mention (again) your wishes regarding your physical body and a service (I personally want it to be a par-tay!). You should list where your will is located, and other important documents. (One dear friend, who shall remain nameless, has a will but did not know where it was located when I asked her.) If the will is in a safe, share the combination! Also list all bank accounts, stocks/bonds, insurance policies and other financial info. Don’t make your family have to guess about this stuff. Or potentially miss something important.
• Generally speaking, have your bills and personal paperwork filed and in order. Everything dumped in a box is not in order.
• Make sure your estate planning documents are up to date!  I cannot stress this enough.  People die, friendships fade, laws change, children/grandchildren are born. If you don’t have a will, get one. Don’t assume anything.  People WILL fight about money.
• Lastly, get rid of all your crap. Keeping a bunch of stuff in your attic or garage or shed for your family to have to sort through is really not a nice legacy to leave behind. It is heart wrenching to have to throw away someone else’s stuff. And time-consuming and costly and exhausting. We estimated that it took us about 200 hours to clean out the house, garage and shed. 

Writing this was sort of therapeutic for me. I hope it makes you think. And then don’t just think, take action.