By GLENN C. McGOVERN, TRIAL ATTORNEY AND MSF INSTRUCTOR
If you are injured in a motorcycle crash, your life will have changed in a split second! Your injuries are usually very serious or even fatal. If you are lucky, you survived without lasting consequences. If you are not so lucky, you have a permanent serious injury like Traumatic Brain Injury, loss of a limb, permanent disability and permanent loss of your chosen profession. You may become totally disabled. The problem with motorcycle cases is that usually there is not enough liability insurance to pay for the tremendous harms and losses the motorcycle rider sustains. With even less luck, the motorcyclists may be killed and the spouse and children are without emotional and financial support.
The most common problem with motorcycle crashes is being able to recover damages due to lack of insurance coverage.
The most common motorcycle crash scenario is with a failure to yield by an automobile driver. This is occurring in over 40% of the automobile/motorcycle crashes in Louisiana. Even if liability is clear and the automobile driver is cited for a traffic ticket and pays the fine, there is still a major problem — the automobile driver only has to carry $15,000 of liability insurance! How can the seriously injured motorcyclist every recover the full amount of his harms and losses? One solution is for a motorcyclist to carry Uninsured Motorists Insurance (i.e. UM coverage) of at least $250,000 to $1,000,000. Then recovery can be paid for from your motorcycle insurance. You have to have the UM on your motorcycle, not just on your automobile! There is no such thing as “full coverage” so read your policy and declaration sheet! Unfortunately, most motorcyclists are sold insurance for the bare minimum liability and collision only so the salesperson can keep the monthly payments low on new motorcycles and get you out on a new motorcycle NASCAR fast! The motorcyclist drives out with no UM coverage and unprotected from under-insured automobile drivers and automobile drivers with no insurance at all — probably 40% of the drivers in Louisiana.
The Solution: The motorcycle trial attorney must Investigate, Investigate and then Investigate some more to find a party with sufficient funds!
I have been racing, riding motorcycles and trying motorcycle cases to juries for over 40 years. Every case is like a serious injury case to me and my legal team. We take them all very seriously. We never just read a police accident report and give up. We have a team at the office that are knowledgeable in the investigation and evaluation and jury science techniques such as focus groups. We leave no stone unturned. The harder we work the better results we usually obtain. I have studied and taught some of the best trial lawyers and jury consultants in the country. I have learned the best trial lawyers are not necessarily the smartest humans, but they all have two things in common: 1.) the great trial attorneys never stop looking/digging for facts to win their case and 2.) the great trial attorneys always do multiple focus groups to test how a jury will evaluate the facts. Every exhibit and fact are always tested in a focus group to determine what the result will be. It is a lot of work and preparation but it always pays off. Most attorneys do not know how to do focus groups and feel they are too expensive. Ask if your attorney does focus groups. If he/she does not consider the adverse consequences of incomplete trial preparation due to no focus group data will have on your case, then he/she may not be as committed to your case as you should expect. We have learned from all of our focus groups. Here are some examples of successes as set out below.
Uncontrollable defective Hayabusa death case
A wife purchased a Hayabusa for her husband. The Hayabusa was purchased used from a Harley-Davidson dealer who was unfamiliar with Japanese motorcycles. The motorcycle was never inspected but, the decedent’s wife was told it was inspected/tested and charged $700 for a safety check. The wife signed an “as-is agreement” waiving the right to sue and accepting the motorcycle “as is” without warranty for defects. We inspected the Hayabusa and went over it with a mechanic and an expert in motorcycle accident reconstruction. We found the rear brakes were worn to the metal. We found the motorcycle computer and safety systems were altered by the addition of an Ivan’s TRE that altered the computer ignition and advanced the timing from idle over 19 degrees—making the sport bike wheelie very easily with 1/8 throttle. The first time the husband rode the Hayabusa, it wheelied into a security gate, killing the rider, who had no helmet on. We did an initial focus group to see what a jury would want to see to win the case. We got invaluable information. We purchased an exemplar Hayabusa and rented Texas Speedway to test an identical Hayabusa with and without the modifications found in the decedent’s motorcycle. We created videos of the demonstrations. Seven jury focus groups were conducted to test all exhibits to be used at trial. The focus group came in with damages of 3 million dollars. The case was tried for 3 days in state court in Orleans with a verdict of 2.83 million dollars against the motorcycle dealer/seller. We left no stone unturned and got a good result. We read every manual on Hayabusa’s and did extensive testing and investigation. All this investigation paid off for the widow and children with a record judgment.
Defective uncertified and untested rear brake light/turn signal
A veteran came back from Iraq and purchased a Yamaha R-6 motorcycle in Leesville, La. The veteran purchased a rear brake/light turn signal. The manufacturer advertised and boasted this light was so bright they could not take pictures of in action. The manufacturer claimed it has been tested and had an incredible number of lumens and would enhance safety. On a dark rainy night, the veteran returned home on the Yamaha R-6 with the Custom LED rear brake light unit. He put on his turn signal well in advance and attempted a U-turn. The veteran rider was rear-ended by a Pontiac before he completed the U-turn. The Pontiac driver claimed he never saw the rear taillight, stop light or turn signal or he would have not rear-ended the veteran rider. The Pontiac only had $15,000 of liability insurance. The veteran rider had over $185,000 in medical expenses alone from multiple lumbar disc fractures repaired in surgery. We purchased and tested the stop/brake light. The turn signals were very small and very dim. We filed suit in state court. We sent discovery requests for tests and certification of D.O.T. for the stoplight/turn signal from the manufacturer. There was not D.O.T. certification of the stoplight/turn signal. There were never any tests ever conducted by the manufacturer of the lumens the defective brake/stop light put out. The advertising claims were totally false and grossly exaggerated. We kept the local driver in the suit and refused to settle with the driver. This way the case remained in state court which was a more favorable venue. The case then settled for insurance policy limits of the manufacturer for $350,000 plus the $15,000 from the Pontiac driver plus court costs and judicial interest.
Untrained commercial truck driver causes motorcyclist to crash with Traumatic Brain Injury
A commercial truck driver pulled out of the shoulder of I-10 in Kenner, Louisiana. The driver knew the truck’s transmission was literally disintegrating with only one gear in the manual transmission left—second gear. Nevertheless, the driver pulled into the 60-m.p.h. traffic causing several automobiles to skid to a stop. A motorcyclist on a vintage Harley-Davidson attempted to apply his brakes to no avail, and was tossed to the concrete, with severe Traumatic Brain Injury and multiple limb and spinal fractures. The motorcyclists had lost his short-term memory and could no longer play the banjo with his band, fly model airplanes nor ride his vintage Harley-Davidson motorcycles he restored. His personality changed drastically. His retirement years were turning into a nightmare. We investigated the trucks mechanical condition. The driver had previously pulled into a truck stop as he knew the truck’s transmission was unsafe. The driver did not ask a mechanic to inspect it nor called for a tow truck. He decided to drive on I-10, fully loaded, with a defective transmission incapable of changing gears. The deteriorating transmission only had second gear left that worked and could not accelerate with over 14,000 lbs. payload from the shoulder of the I-10 highway. He got stuck in second gear. The truck driver then stopped on the shoulder of I-10. Traffic was whizzing by at rush hour at over 65 m.p.h. We then investigated the company and its training. This driver’s video deposition was taken. In the deposition we found the company admitted it did not test its drivers. The company admitted did not train its drivers. The driver admitted he did not even know what the “Green Book” was which is a handbook of federal regulations all truck drivers know and usually carry with them. When shown the “Green Book” he could not recall ever seeing such a book of regulations and was unfamiliar with basic safety rules. Shortly before trial the case settled in excess of 1.7 million dollars.
The Solution: Dig, dig, and dig some more for facts to win your motorcycle case.
Motorcycle cases are never easy. But the only way to win is to make sure you hire a knowledgeable attorney who will work the case to death to find every fact available to prove the case and conduct focus groups. The lawyer must fully understand motorcycles physics, operations, performance and safety rules of the road. Motorcycle crashes are much more complicated than car crashes. Also, a knowledge of jury science and the ability to conduct and interpret focus groups is critical to success.
Conclusion: Look for third parties with legal responsibility for recovery
The motorcycle trial attorney must investigate to look for the following to possibly recover from third parties to make the motorcyclists whole:
1.) Defective helmets that are either not certified or do not protect against brain damage from rotational acceleration.
2.) Defective motorcycles sold without ABS braking systems that are required elsewhere but the U.S.
3.) Defective motorcycle designs that induce dangerous wobble due to defective suspension design and parts. We see this with certain models.
4.) Defective drive-by-wire throttle systems that fail due to defective computer programming resulting full throttle unintended acceleration.
5.) Improper assembly or improper repairs by a dealer of a motorcycle.
6.) Impaired automobile drivers from prescriptive drugs or alcohol.
7.) Physically impaired driver from medical conditions or prescriptive drug treatments that impair driving abilities.
8.) Automobile drivers that are impaired but released to drive from hospitals.
9.) Distracted drivers using cell phones to talk or text or look at social media while driving.
10.) Defective roadways, wire barriers, and dangerous road construction areas.
11.) Trike motorcycles which are improperly designed to be out of load limits making recovery from a wheel lift impossible.
I hope this has been of help to all in the motorcycle community. If you have any other questions, please call me anytime at 504-456-3610 or email me at firstname.lastname@example.org. Check out our website at glennmcgovern.com for more information.
GLENN C. McGOVERN, TRIAL ATTORNEY AND MSF INSTRUCTOR