Another State Bans Hand-Held Devices While Driving

Hand Held Devices While DrivingGeorgia has joined fifteen other states which have outlawed the use of hand-held cellphones and mobile devices while driving. A new law signed by Governor Nathan Deal makes watching movies, shooting video, and even the mere “holding” of hand-held devices while in the vehicle—even while stopped—illegal. The bill wasn’t passed in Georgia’s Capitol building in Atlanta. Instead, the governor signed it in Statesboro, where five Georgia Southern University nursing students were killed by a distracted truck driver in 2015.

House Bill 673 allows drivers to talk on the phone or text if they use hands-free technology. It was signed on May 2 and took effect on July 1. House Bill 673 is the most significant change in Georgia driving laws since texting while driving was first banned in 2010. Georgia joins California, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Vermont, Washington, and West Virginia, all of which prohibit drivers from using hand-held cellphones while driving. Some states, such as Colorado, allow cellphone use, but prohibit texting. The fast-changing legal landscape regarding the use of cellphones and hand-held devices while driving provides a significant litigation tool when handling claims or litigating automobile accidents.

A new study authored by Zendrive, a San Francisco-based startup that tracks cellphone use for auto insurers and ride-hailing fleets, reveals something very telling about human nature—many of us must learn the hard way. The study reveals that despite a proliferation of laws banning cellphone use and texting while driving an automobile, and despite knowing that cellphone use can be a crash risk, more and more drivers are using Instagram and sending and receiving e-mails and texts at highway speeds, making the roads less safe rather than safer. Mistakes are part of being human and we can all appreciate mistakes as life lessons. Unfortunately, you cannot learn from a fatal mistake and there is often someone else who also pays a steep price.

The Zendrive study, which can be viewed HERE, monitored 7.1 billion miles of travel from December 2017 through February 2018, comparing the results with the same period one year earlier. An astonishing two out of three drivers used a cellphone at least once, and those who used their cellphones while driving used them for an average of nearly four minutes! This was a 5% increase from the previous year. Use of cellphones while driving increased dramatically across the entire country in the past year, despite fourteen new states passing strong laws banning such behavior. In particular, cellphones were used much more frequently in California, Oregon, and Washington, where new laws were just passed banning their use. Television commercials showing horribly disfigured teenage victims of texting while driving urging their friends not to do what they did have seemingly fallen on deaf ears. Mississippi and Rhode Island were revealed to be the worst states for distracted driving, where drivers spent an unbelievable 8% of their driving time on their cellphones. In an interesting factoid revealed by the study, iPhone users were far more likely to use their cellphones than Android users.

The ramifications for insurance claims and litigation are significant and call for an entirely new approach to the adjusting and litigation of auto accident claims. Every year, more than 170 billion cellphone texts are sent and received. Each year, an average of 3,000 people die and 450,000 are injured in motor vehicle accidents involving distracted drivers. Ten percent of all drivers who are 15 to 19 years of age involved in fatal crashes were distracted when the accident occurred. The significant safety problem of distracted driving has grown exponentially over the past decade and has reached epidemic proportions.

Every state is different, and some states have no legislation. No litigator or claims handler should adjust or handle a claim without being familiar with this law and without trying to verify the cellphone records of all drivers involved in an accident. Case law regarding the discovery of cellphone records is still very limited. While it varies from state to state, the general rule seems to be that to obtain these records, a party must show a good-faith basis for believing that the opposing driver was using a cellphone at or around the time of the accident. An affidavit of the plaintiff revealing that he or she saw what appeared to be the defendant on the cellphone is sufficient. However, in many states, the mere fact that a defendant was in possession of a cellphone at the time of the accident will rarely be sufficient to allow the production of cellphone records. At the same time, there are some states that allow the production of cellphone records simply because the defendant had a cellphone in his or her possession at the time of an accident. These states tend to rule that cellphone users do not retain a privacy right in the numbers they dial and time stamps of the calls, which is what would be sought in these civil cases. What is sought is the use of the cellphone at the time of the accident—not who was being talked to or what was being discussed.

The trend appears to be moving in the direction of allowing unlimited discovery of basic information regarding cellphone use. Civil justice dictates that parties in all automobile accident cases in which a cellphone was in the defendant’s possession should be able to obtain records to determine if the opposing party was using a cellphone at the time of the accident. The process of obtaining cellphone records is as simple as a discovery demand or subpoena, and a party retains minimal to no privacy rights in such records. Courts will increasingly fashion remedies to protect any possible privacy rights which may be at issue.

MWL has prepared a chart—found HERE—which summarizes current laws across all 50 states governing the use of cellphones, texting, and/or the manipulation of hand-held electronic devices while driving. Related laws governing the use of headphones or other devices that would impair a driver’s attention or hearing are also included in this chart where relevant.

If you should have any questions regarding this article or litigating automobile accidents that involve the use of electronic devices, please contact Gary Wickert at gwickert@mwl-law.com.

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has 35 years of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.