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Month: November 2017

How Texting While Driving May Impact Workers Compensation


From time to time I have guest articles on my blog from other lawyers around the country. The following article refers to North Carolina law, not Pennsylvania. Despite the different jurisdictions, this article still provides important information pertaining to texting and driving.

Worker’s Comp Insurers and Employers are beginning to take notice of a disturbing trend in society today… more and more work-related fatalities that are caused by, you guessed it, texting while driving. This recent article by Ira Leesfield cites a statistic from the National Safety Council that an estimated 200,000 traffic accidents per year are caused by drivers who have been texting. Also cited in the article was a study by Car & Driver Magazine which “found that texting and driving was more hazardous than drinking and driving, with texting drivers three to four times slower in their response rates than drunk drivers.”

How does this impact Worker’s Compensation Insurance? Many employers provide their employees with mobile devices, and require continued contact with them through email or texting – even while those employees are on the roads. The problem with this, and the reason that employers and the insurance companies are taking notice, is that when an employee is involved in a traffic accident while texting, not only could the insurance company/employer be on the hook for paying the workers compensation claim, but they could also be responsible for paying the claim to the victim of the accident under a theory of respondeat superior or direct negligence. And because more and more accidents are caused by texting while driving, that means that the insurance companies are going to have to pay out more and more money for these workers compensation and other claims.

A prudent employer would be smart to adopt written policies banning texting while driving for all employees, and make sure that these policies are frequently and adequately communicate to employees. The problem arises when an employee is sent out for an isolated errand – but they don’t normally drive for that employer. If the errand was for company business, than the employer could be liable under the Worker’s Comp statute. (I’ve frequently thought about what might happen if my legal assistant was injured in an accident while driving to the courthouse for a last minute filing or to pick up office supplies.)

Since North Carolina has a “no-fault” workers comp system, an accident caused by an employee who was texting while driving would still generally be compensable – even though it may have been the employee’s fault. Ultimately, the courts and/or legislature will decide whether employers are responsible to pay out workers compensation claims for an employee that was injured in a traffic accident, even though they may have been texting at the time of the accident.

In the meantime, I would advise anyone who drives for a living to shut the phone off and pay attention to the road. If your employer requires you to text and drive at the same time, then you may want to consider whether this is someone you want to work for. Whether the employer likes it or not, your safety is more important than productivity.


Technology and the car accident scene investigation


I settled a case a few weeks ago where the cell phone records of the defendant driver turned out to be important. She denied being on the cell phone at the time of the accident and my client was adamant that she was on the cell phone and that was why the defendant had run the red light, because she wasn’t paying attention. Turned out that when we attempted to subpoena the defendant’s cell phone records the defendant driver’s cell phone carrier was unwilling to turn over the records without an additional court order. (Note that a subpoena is a court order, so the cell phone carrier was just delaying the inevitable- eventually we would have gotten the records). The defendant was apparently concerned about what those records might have revealed, as compared to what she testified to at her deposition. Apparently those records would have jeopardized the defendant’s denial of cell phone use, because her attorney quickly agreed to settle the case for the figure we had suggested to him after I filed a motion to obtain the cell phone records.

Obviously cell phone records can be used as both a sword and a shield in terms of vehicle accident investigation, depending on who is accused of using  a cell phone. But, think of the other technologies in place that can also be used to prove or disprove liability in a car accident case. For instance…

  • Text messages/e-mails.
  • Video footage: This may be particularly true if the accident occurred during rush hour and the scene is captured by a traffic helicopter.
  • GPS devices: Garmins, Magelllan and Onstar all record information, including the driver’s route of travel.
  • Black box technology: Common on trucks, black boxes are now being equipped on private passenger motor vehicles. Black boxes are designed to record and preserve critical information at the time of an accident, just as black boxes are used in airplane crashes to recreate the events leading up to the crash. Black boxes typically record speed, braking and acceleration. The National Highway Traffic Safety Administration is looking at the possibility of requiring data recorders for all new vehicles.
  • Speed Pass: Data from these devices, also discoverable via subpoena as are cell records, tell where a vehicle was on the highway and can pinpoint time of day.
  • Traffic camera surveillance: This is becoming more common in cities throughout the U.S. Designed to identify drivers who run stop signs and red lights,  traffic surveillance footage can also be useful in showing how a collision happened.